Federal Register Vol. 81, No.149,

Federal Register Volume 81, Issue 149 (August 3, 2016)

Page Range51075-51296
FR Document

81_FR_149
Current View
Page and SubjectPDF
81 FR 51193 - Commission Information Collection Activities (FERC-539); Comment RequestPDF
81 FR 51147 - Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment; and the Comprehensive End-Stage Renal Disease Care ModelPDF
81 FR 51184 - Corporation for Travel Promotion (dba Brand USA)PDF
81 FR 51180 - Lower Joseph Creek Restoration Project, Wallowa-Whitman National Forest Land and Resource Management Plan Amendment for Research Natural Area EstablishmentPDF
81 FR 51079 - Revisions to the Civil Penalty Inflation Adjustment Tables; CorrectionPDF
81 FR 51081 - Special Conditions: The Boeing Company Model 787-9 Series Airplane; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats With Inflatable and 3-Point Restraint SystemsPDF
81 FR 51086 - Special Conditions: Gulfstream Aerospace Corporation Model GVII-G500 Airplanes; Interaction of Systems and Structures Through a Three-Axis Fly-by-Wire SystemPDF
81 FR 51090 - Special Conditions: Embraer S.A. Model EMB-545 and EMB-550 airplanes, Synthetic Vision System and Enhanced Flight Vision System on Head-Up DisplayPDF
81 FR 51093 - Special Conditions: FedEx Express Corporation, Boeing Model 767-300F; Enhanced Flight Vision SystemPDF
81 FR 51210 - DHS Data Privacy and Integrity Advisory CommitteePDF
81 FR 51174 - The Scotts Co. and Monsanto Co.; Notice of Intent To Prepare an Environmental Impact Statement for Determination of Nonregulated Status of Glyphosate-Resistant Creeping BentgrassPDF
81 FR 51193 - Proposed Agency Information CollectionPDF
81 FR 51205 - Delegation of AuthoritiesPDF
81 FR 51187 - Ammonium Sulfate From the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty InvestigationPDF
81 FR 51185 - Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Correction of the Antidumping Duty New Shipper Review Federal Register NoticePDF
81 FR 51271 - Open Meeting of the Federal Advisory Committee on InsurancePDF
81 FR 51185 - Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Initiation of Antidumping Duty New Shipper ReviewPDF
81 FR 51126 - Trade Monitoring Procedures for Fishery Products; International Trade in Seafood; Permit Requirements for Importers and ExportersPDF
81 FR 51095 - Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Installation of an Airbag System To Limit the Axial Rotation of the Upper Leg on Single-Place Side-Facing SeatsPDF
81 FR 51145 - National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; ClarificationPDF
81 FR 51114 - National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; ClarificationPDF
81 FR 51198 - Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permits for ABC Coke and Walter Coke (Jefferson County, Alabama)PDF
81 FR 51199 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 51205 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 51217 - Steam Generator Materials and DesignPDF
81 FR 51182 - Agenda and Notice of Public Meeting of the Connecticut Advisory CommitteePDF
81 FR 51199 - Notice of Agreements FiledPDF
81 FR 51265 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
81 FR 51210 - Tribal Consultation and Listening Sessions on Indian Trust Asset Reform ActPDF
81 FR 51180 - Forest Resource Coordinating CommitteePDF
81 FR 51120 - Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Implementation and Extension of Temporary Moratoria on Enrollment of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Designated Geographic Locations and Lifting of the Temporary Moratoria on Enrollment of Part B Emergency Ground Ambulance Suppliers in All Geographic LocationsPDF
81 FR 51116 - Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Moratoria-Designated Geographic LocationsPDF
81 FR 51199 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 51264 - International Telecommunication Advisory Committee; Solicitation of MembershipPDF
81 FR 51213 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
81 FR 51218 - Virginia Electric Power Company; Surry Power Station, Unit Nos. 1 and 2; Use of AREVA's M5® Alloy Fuel Rod Cladding MaterialPDF
81 FR 51189 - New England Fishery Management Council; Public MeetingPDF
81 FR 51190 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 51216 - Advisory Committee on the Medical Uses of Isotopes: Meeting NoticePDF
81 FR 51264 - Notice of Renewal of the Charter of the International Telecommunication Advisory Committee (ITAC)PDF
81 FR 51140 - Convention on Supplementary Compensation for Nuclear Damage Contingent Cost AllocationPDF
81 FR 51179 - Beaverhead-Deerlodge National Forest; Montana; Supplemental EIS for the Beaverhead-Deerlodge National Forest Land and Resource Management Plan To Comply With District of Montana Court OrderPDF
81 FR 51265 - Morristown & Erie Railway, Inc.-Abandonment Exemption-In Roseland, Essex County, N.J.PDF
81 FR 51192 - Record of Decision for Activities and Operations at Yuma Proving Ground, ArizonaPDF
81 FR 51192 - Notice of Intent To Return Human Remains: National Museum of Health and Medicine, Defense Health Agency, Silver Spring, MDPDF
81 FR 51195 - Pine Creek Mine, LLC; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and PrescriptionsPDF
81 FR 51196 - Metropolitan District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
81 FR 51100 - Electronic Tariff FilingsPDF
81 FR 51196 - New England Hydropower Company, LLC, Hanover Pond Hydro, LLC; Notice of Transfer of ExemptionPDF
81 FR 51197 - Elephant Butte Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
81 FR 51177 - Privacy Act Systems of Records; Veterinary Services-Records of Accredited VeterinariansPDF
81 FR 51211 - Notice of Inventory Completion: University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PAPDF
81 FR 51212 - Agency Information Collection Activities; Proposed Collection Comments Requested; Extension, Without Change, of a Currently Approved Collection Bulletproof Vest Partnership (BVP)PDF
81 FR 51188 - Endangered Species; File Nos. 19331 and 19642PDF
81 FR 51190 - Determination Under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR Agreement”)PDF
81 FR 51181 - White Pine-Nye Resource Advisory CommitteePDF
81 FR 51214 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): MeetingPDF
81 FR 51176 - Secretary's Advisory Committee on Animal Health; Intent To RenewPDF
81 FR 51188 - Extension of U.S. Section Member Appointments to the United States-Brazil CEO ForumPDF
81 FR 51178 - Notice of a Request for Extension of a Currently Approved Information CollectionPDF
81 FR 51186 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review; 2014PDF
81 FR 51213 - Notice of Public Comment Period on the DRAFT “National Best Practices for Sexual Assault Kits: A Multidisciplinary Approach”PDF
81 FR 51206 - Changes in Flood Hazard DeterminationsPDF
81 FR 51183 - Civil Nuclear Trade Advisory Committee: Notice of an Opportunity To Apply For MembershipPDF
81 FR 51205 - Request for Comment on Report Entitled: Advancing the Care of Pregnant and Parenting Women With Opioid Use Disorder and Their Infants: A Foundation for Clinical GuidancePDF
81 FR 51084 - Special Conditions: The Boeing Company Model 777-300ER Airplanes; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable RestraintsPDF
81 FR 51237 - CSat Investment Advisory, L.P., et al.; Notice of ApplicationPDF
81 FR 51220 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning Enhancements to The Options Clearing Corporation's Governance ArrangementsPDF
81 FR 51251 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To List and Trade Shares of the PowerShares Variable Rate Investment Grade Portfolio, a Series of the PowerShares Actively Managed Exchange-Traded Fund TrustPDF
81 FR 51249 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending the Ninth Amended and Restated Operating Agreement of the ExchangePDF
81 FR 51239 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify the Operation of the Regulation NMS Plan To Address Extraordinary Market VolatilityPDF
81 FR 51256 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and the Investors Exchange LLCPDF
81 FR 51241 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of Shares of the Direxion Daily Municipal Bond Taxable Bear 1X Fund Under NYSE Arca Equities Rule 5.2(j)(3)PDF
81 FR 51248 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Relating to Amendments to NYSE MKT Rules 1600 et seq.PDF
81 FR 51258 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Tiers Related to SPY OptionsPDF
81 FR 51215 - Agency Information Collection Activities: Proposed Collection; Comment Request; Advertising of Excess InsurancePDF
81 FR 51220 - New Postal ProductPDF
81 FR 51182 - Submission for OMB Review; Comment RequestPDF
81 FR 51266 - Michelin North America, Inc., Receipt of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 51269 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 51267 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 51215 - Information Collection: “NRC Form 212, Qualifications Investigation, Professional, Technical and Administrative Positions”PDF
81 FR 51201 - Medical X-Ray Imaging Devices Conformance With International Electrotechnical Commission Standards; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 51204 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Agreement for Shipment of Devices for SterilizationPDF
81 FR 51189 - Marine Mammals; File No. 18879PDF
81 FR 51125 - Department of State Acquisition RegulationPDF
81 FR 51142 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 51165 - Atlantic Highly Migratory Species; Commercial Retention Limit for Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic RegionPDF
81 FR 51138 - Snapper-Grouper Fishery of the South Atlantic; 2016 Commercial Accountability Measure and Closure for the South Atlantic Lesser Amberjack, Almaco Jack, and Banded Rudderfish ComplexPDF
81 FR 51270 - List of Applications Delayed More Than 180 DaysPDF
81 FR 51097 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 51145 - Procedures Related to MotionsPDF
81 FR 51075 - National Organic Program (NOP); Sunset 2016 Amendments to the National ListPDF
81 FR 51147 - Dispute Resolution Procedures Under the Fixing America's Surface Transportation Act of 2015PDF
81 FR 51273 - Environmental Policies and Procedures; Compliance With the National Environmental Policy Act and Related AuthoritiesPDF
81 FR 51100 - Extension of Expiration Dates for Four Body System ListingsPDF
81 FR 51149 - Petition for Rulemaking To Adopt Revised Competitive Switching Rules; Reciprocal SwitchingPDF
81 FR 51102 - Amendments to Regional Consistency RegulationsPDF
81 FR 51179 - Ketchikan Resource Advisory CommitteePDF
81 FR 51174 - Notice of Public Information Collections Being Reviewed by the U.S. Agency for International Development; Comments RequestedPDF

Issue

81 149 Wednesday, August 3, 2016 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51199-51201 2016-18392 Agency Agency for International Development NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51174 2016-17375 Agricultural Marketing Agricultural Marketing Service RULES National Organics Program, 51075-51079 2016-18108 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Commodity Credit Corporation

See

Farm Service Agency

See

Foreign Agricultural Service

See

Forest Service

See

Rural Business-Cooperative Service

See

Rural Housing Service

See

Rural Utilities Service

Animal Animal and Plant Health Inspection Service NOTICES Charter Renewals: Secretary's Advisory Committee on Animal Health, 51176-51177 2016-18341 Environmental Impact Statements; Availability, etc.: The Scotts Co. and Monsanto Co.; Determination of Nonregulated Status of Glyphosate-Resistant Creeping Bentgrass, 51174-51176 2016-18421 Privacy Act; Systems of Records Veterinary Services--Records of Accredited Veterinarians, 51177-51178 2016-18357 Army Army Department NOTICES Records of Decision: Activities and Operations at Yuma Proving Ground, AZ, 51192 2016-18364 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare, Medicaid, and Children's Health Insurance Programs: Implementation and Extension of Temporary Moratoria on Enrollment of Part B Non-Emergency Ground Ambulance Suppliers, etc., 51120-51124 2016-18383 Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Moratoria-Designated Geographic Locations, 51116-51120 2016-18381 PROPOSED RULES Medicare Program: End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, etc., 51147 C1--2016--15188 Civil Rights Civil Rights Commission NOTICES Meetings: Connecticut Advisory Committee, 51182 2016-18389 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51182 2016-18309
Committee Implementation Committee for the Implementation of Textile Agreements NOTICES Determinations under the Textile and Apparel Commercial Availability Provision of CAFTA-DR, 51190-51191 2016-18345 Commodity Credit Commodity Credit Corporation RULES Environmental Policies and Procedures: Compliance with the National Environmental Policy Act and Related Authorities, 51274-51296 2016-18075 Defense Department Defense Department See

Army Department

NOTICES Intention to Return Human Remains: National Museum of Health and Medicine, Defense Health Agency, Silver Spring, MD, 51192-51193 2016-18363
Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation, 51140-51142 2016-18368 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51193 2016-18419
Environmental Protection Environmental Protection Agency RULES Amendments to Regional Consistency Regulations, 51102-51114 2016-17899 National Emission Standards: Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification, 51114-51116 2016-18395 PROPOSED RULES National Emission Standards: Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification, 51145-51146 2016-18396 NOTICES Clean Air Act Operating Permit Program Petitions: Objection to State Operating Permits for ABC Coke and Walter Coke (Jefferson County, AL), 51198 2016-18394 Farm Service Farm Service Agency RULES Environmental Policies and Procedures: Compliance with the National Environmental Policy Act and Related Authorities, 51274-51296 2016-18075 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 51097-51100 2016-18174 Final Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Installation of an Airbag System to Limit the Axial Rotation of the Upper Leg on Single-Place Side-Facing Seats, 51095-51097 2016-18398 Revisions to the Civil Penalty Inflation Adjustment Tables; Correction, 51079-51081 2016-18514 Special Conditions: Embraer S.A. Model EMB-545 and EMB-550 Airplanes, Synthetic Vision System and Enhanced Flight Vision System on Head-Up Display, 51090-51093 2016-18447 FedEx Express Corp., Boeing Model 767-300F; Enhanced Flight Vision System, 51093-51095 2016-18445 Gulfstream Aerospace Corporation Model GVII-G500 Airplanes; Interaction of Systems and Structures Through a Three-Axis Fly-by-Wire System, 51086-51090 2016-18448 The Boeing Co. Model 787-9 Series Airplane; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable and 3-Point Restraint Systems, 51081-51084 2016-18449 The Boeing Company Model 777-300ER Airplanes; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable Restraints, 51084-51086 2016-18323 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 51142-51144 2016-18262 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations; Changes, 51206-51210 2016-18332 Federal Energy Federal Energy Regulatory Commission RULES Electronic Tariff Filings, 51100 2016-18360 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51193-51195 R1--2016--17896 Applications: Pine Creek Mine, LLC, 51195-51196 2016-18362 Qualifying Conduit Hydropower Facilities: Elephant Butte Irrigation District, 51197-51198 2016-18358 Metropolitan District, 51196-51197 2016-18361 Transfers of Exemptions: New England Hydropower Company, LLC; Hanover Pond Hydro, LLC, 51196 2016-18359 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 51199 2016-18388 Federal Railroad Federal Railroad Administration NOTICES Railroad Signal Systems: Application for Approval of Discontinuance or Modification, 51265-51266 2016-18386 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 51199 2016-18380 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Agreement for Shipment of Devices for Sterilization, 51204-51205 2016-18299 Guidance: Medical X-Ray Imaging Devices Conformance With International Electrotechnical Commission Standards, 51201-51204 2016-18300 Foreign Agricultural Foreign Agricultural Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51178-51179 2016-18337 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Beaverhead-Deerlodge National Forest Land and Resource Management Plan To Comply With District of Montana Court Order, 51179-51180 2016-18366 Lower Joseph Creek Restoration Project: Wallowa-Whitman National Forest Land and Resource Management Plan Amendment for Research Natural Area Establishment, 51180-51181 2016-18519 Meetings: Forest Resource Coordinating Committee, 51180 2016-18384 Ketchikan Resource Advisory Committee, 51179 2016-17744 White Pine-Nye Resource Advisory Committee, 51181-51182 2016-18344 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Delegation of Authority, 51205 2016-18417
Homeland Homeland Security Department See

Federal Emergency Management Agency

NOTICES Charter Renewals: Data Privacy and Integrity Advisory Committee, 51210 2016-18434
Interior Interior Department See

National Park Service

NOTICES Meetings: Tribal Consultation and Listening Sessions on Indian Trust Asset Reform Act; Correction, 51210-51211 2016-18385
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Ammonium Sulfate from the People's Republic of China, 51187-51188 2016-18416 Certain Frozen Fish Fillets from the Socialist Republic of Vietnam; Corrections, 51185 2016-18415 Polyethylene Terephthalate Film, Sheet, and Strip from India, 51186-51187 2016-18336 Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China, 51185-51186 2016-18402 Corporation for Travel Promotion (dba Brand USA), 51184-51185 2016-18531 Extension of U.S. Section Member Appointments to the United States-Brazil CEO Forum, 51188 2016-18338 Requests for Nominations: Civil Nuclear Trade Advisory Committee, 51183-51184 2016-18331 Justice Department Justice Department See

Justice Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bulletproof Vest Partnership, 51212-51213 2016-18351 Lodging of Proposed Consent Decrees under the Clean Water Act, 51213 2016-18377
Justice Programs Justice Programs Office NOTICES National Best Practices for Sexual Assault Kits; A Multidisciplinary Approach, 51213-51214 2016-18334 Labor Department Labor Department NOTICES Meetings: Advisory Committee on Veterans' Employment, Training and Employer Outreach, 51214-51215 2016-18343 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Advertising of Excess Insurance, 51215 2016-18311 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decisions of Inconsequential Noncompliance: Cooper Tire and Rubber Co., 51267-51270 2016-18306 2016-18307 Michelin North America, Inc., 51266-51267 2016-18308 National Institute National Institutes of Health NOTICES Meetings: National Institute of Allergy and Infectious Diseases, 51205 2016-18391 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery of the South Atlantic; South Atlantic Lesser Amberjack, Almaco Jack, and Banded Rudderfish Complex; Commercial Accountability Measure and Closure, 51138-51139 2016-18249 Trade Monitoring Procedures for Fishery Products: International Trade in Seafood; Permit Requirements for Importers and Exporters, 51126-51138 2016-18401 PROPOSED RULES Atlantic Highly Migratory Species: Commercial Retention Limit for Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic Region, 51165-51173 2016-18253 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 51190 2016-18373 New England Fishery Management Council, 51189 2016-18374 Permits: Endangered Species; File Nos. 19331 and 19642, 51188-51189 2016-18348 Marine Mammals; File No. 18879, 51189-51190 2016-18298 National Park National Park Service NOTICES Inventory Completions: University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PA, 51211-51212 2016-18356 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Qualifications Investigation, Professional, Technical and Administrative Positions, 51215-51216 2016-18304 Exemptions: Virginia Electric Power Co., Surry Power Station, Unit Nos. 1 and 2; Use of AREVA's M5 Alloy Fuel Rod Cladding Material, 51218-51220 2016-18375 Guidance: Steam Generator Materials and Design, 51217-51218 2016-18390 Meetings: Advisory Committee on the Medical Uses of Isotopes, 51216-51217 2016-18372 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES List of Applications Delayed More than 180 Days, 51270-51271 2016-18197 Postal Regulatory Postal Regulatory Commission PROPOSED RULES Procedures Related to Motions, 51145 2016-18170 NOTICES New Postal Products, 51220 2016-18310 Rural Business Rural Business-Cooperative Service RULES Environmental Policies and Procedures: Compliance with the National Environmental Policy Act and Related Authorities, 51274-51296 2016-18075 Rural Housing Service Rural Housing Service RULES Environmental Policies and Procedures: Compliance with the National Environmental Policy Act and Related Authorities, 51274-51296 2016-18075 Rural Utilities Rural Utilities Service RULES Environmental Policies and Procedures: Compliance with the National Environmental Policy Act and Related Authorities, 51274-51296 2016-18075 Securities Securities and Exchange Commission NOTICES Applications: CSat Investment Advisory, L.P., et al., 51237-51239 2016-18321 Orders: Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and the Investors Exchange LLC, 51256-51258 2016-18316 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 51239-51241 2016-18317 NASDAQ BX, Inc., 51258-51264 2016-18313 New York Stock Exchange, LLC, 51249-51251 2016-18318 NYSE Arca, Inc., 51241-51248 2016-18315 NYSE MKT LLC, 51248-51249 2016-18314 The NASDAQ Stock Market, LLC, 51251-51256 2016-18319 The Options Clearing Corp., 51220-51237 2016-18320 Social Social Security Administration RULES Extension of Expiration Dates for Four Body System Listings, 51100-51102 2016-18051 State Department State Department RULES Acquisition Regulations, 51125-51126 2016-18280 NOTICES Charter Renewals: International Telecommunication Advisory Committee, 51264 2016-18369 Requests for Nominations: International Telecommunication Advisory Committee, 51264 2016-18378 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Advancing the Care of Pregnant and Parenting Women with Opioid Use Disorder and their Infants: A Foundation for Clinical Guidance., 51205-51206 2016-18324 Surface Transportation Surface Transportation Board PROPOSED RULES Competitive Switching and Reciprocal Switching, 51149-51165 2016-17980 Dispute Resolution Procedures Under the Fixing America's Surface Transportation Act, 51147-51149 2016-18102 NOTICES Abandonment Exemptions: Morristown and Erie Railway, Inc., Roseland, Essex County, NJ, 51265 2016-18365 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department NOTICES Meetings: Federal Advisory Committee on Insurance, 51271 2016-18403 Separate Parts In This Issue Part II Agriculture Department, Commodity Credit Corporation, 51274-51296 2016-18075 Agriculture Department, Farm Service Agency, 51274-51296 2016-18075 Agriculture Department, Rural Business-Cooperative Service, 51274-51296 2016-18075 Agriculture Department, Rural Housing Service, 51274-51296 2016-18075 Agriculture Department, Rural Utilities Service, 51274-51296 2016-18075 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.

81 149 Wednesday, August 3, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Document Number AMS-NOP-15-0052; NOP-15-12] RIN 0581-AD43 National Organic Program (NOP); Sunset 2016 Amendments to the National List AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule addresses recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) following their April 2015 meeting. These recommendations pertain to the 2016 sunset review of substances on the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List). Consistent with the recommendations from the NOSB, this final rule removes five nonorganic nonagricultural substances from the National List for use in organic handling: Egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate when their use exemptions (allowances) expire on September 12, 2016.

DATES:

Effective Date: This rule is effective on September 12, 2016.

FOR FURTHER INFORMATION CONTACT:

Paul Lewis, Ph.D., Director, Standards Division, Telephone: (202) 720-3252; Fax: (202) 260-9151.

SUPPLEMENTARY INFORMATION:

I. Background

The National Organic Program (NOP) is authorized by the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501-6522). The USDA Agricultural Marketing Service (AMS) administers the NOP. Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published December 21, 2000 (65 FR 80548), and became effective on October 21, 2002. Through these regulations, the AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products. Since becoming effective, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606.

This National List identifies the synthetic substances that may be used and the nonsynthetic substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and the USDA organic regulations, as indicated in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.

As stipulated by the OFPA, the NOSB develops recommendations to amend the National List. The NOSB operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2 et seq.), to assist in the evaluation of substances to be used or not used in organic production and handling, and to advise the Secretary on the USDA organic regulations. The OFPA also requires a sunset review of all substances included on the National List within five years of their addition to or renewal on the list. If a listed substance is not reviewed by the NOSB and renewed by the USDA within the five year period, its allowance or prohibition on the National List is no longer in effect. Under the authority of the OFPA, the Secretary can amend the National List through rulemaking based upon proposed amendments recommended by the NOSB.

The NOSB's recommendations to continue existing exemptions and prohibitions include consideration of public comments and applicable supporting evidence that express a continued need for the use or prohibition of the substance(s) as required by the OFPA. Recommendations to either continue or discontinue an authorized exempted synthetic substance (7 U.S.C. 6517(c)(1)) are determined by the NOSB's evaluation of technical information, public comments, and supporting evidence that demonstrate that the substance is: (a) Harmful to human health or the environment; (b) no longer necessary for organic production due to the availability of alternative wholly nonsynthetic substitute products or practices; or (c) inconsistent with organic farming and handling practices.

In accordance with the sunset review process published in the Federal Register on September 16, 2013 (78 FR 61154), this final rule would amend the National List to reflect recommendations submitted to the Secretary by the NOSB on April 30, 2015, to amend the National List to remove five substances allowed as ingredients in or on processed products labeled as “organic.” The exemptions of each substance appearing on the National List for use in organic production and handling are evaluated by the NOSB using the evaluation criteria specified on the OFPA (7 U.S.C. 6517-6518).

II. Overview of Amendments Nonrenewals

After considering public comments and supporting documents, the NOSB determined that one substance allowed on § 205.605(a) and four substances allowed on § 205.605(b) of the National List are no longer necessary or essential for organic handling. The NOSB concluded that practices and other substances are suitable alternatives to egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate. AMS has reviewed and accepts the five NOSB recommendations for removal. Based upon these NOSB recommendations, this action amends the National List to remove the exemptions for egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate when their use exemptions expire on September 12, 2016.

Egg white lysozyme

The USDA organic regulations include an exemption on the National List for egg white lysozyme as a nonsynthetic ingredient for use in organic processed products at § 205.605(a) as follows: Egg white lysozyme (CAS # 9001-63-2). In 2004, egg white lysozyme was petitioned for addition to § 205.605 because it was considered to be an essential processing aid/preservative for controlling bacteria that survived the pasteurization process of milk that is used for cheese manufacture. As recommended by the NOSB, egg white lysozyme was added to the National List on September 12, 2006 (71 FR 53299). The NOSB recommended the renewal of egg white lysozyme during their 2011 sunset review and the listing was renewed in a final rule published on August 3, 2011 (76 FR 46595). The NOSB completed the 2016 sunset review for the allowance of egg white lysozyme at their April 2015 meeting.

AMS published two notices of the NOSB public meetings covering the 2016 sunset review, in Federal Register on September 8, 2014 (79 FR 53162) and on March 12, 2015 (80 FR 12975) with requests for comments. Their purpose was to notify the public that the allowance for egg white lysozyme would expire on September 12, 2016, if not reviewed by the NOSB and renewed by the Secretary. During their sunset review deliberation, the NOSB considered written comments received prior to and during the public meetings on all substances included in the 2016 sunset review. These written comments can be viewed at http://www.regulations.gov by searching for the documents: AMS-NOP-14-0063 (October 2014 NOSB public meeting) and AMS-NOP-15-0002 (April 2015 NOSB public meeting). The NOSB also considered oral comments received during these public meetings which are included in the meeting transcripts available on the AMS Web site at http://www.ams.usda.gov/nop. During their sunset review of egg white lysozyme the NOSB considered two technical reports on enzymes that were requested by and developed for the NOSB in 2011 and 2003, which are also available for review on the AMS Web site.

Public comments provided the NOSB with information about the availability of practice-based alternatives to the use of egg white lysozyme. Such comments provided limited information to support the continued need for egg white lysozyme in organic processed products. Based on those public comments, the NOSB determined that the allowance for egg white lysozyme on the National List in § 205.605(a) is no longer necessary or essential for organic processed products. Subsequently, the NOSB recommended removal of egg white lysozyme from the National List at their April 2015 public meeting.

A proposed rule to remove egg white lysozyme from the National List was published on December 16, 2015 (80 FR 78150). AMS received comments that egg white lysozyme is used in the organic processing of beer, wine and hard cheeses. The prevalence of use in organic processing could not be ascertained from the public comments. Further, the comments did not assert that egg white lysozyme is essential in organic processing. Therefore, consistent with the NOSB recommendation, this final rule amends § 205.605(a) by removing the allowance for egg white lysozyme. This amendment is effective on egg white lysozyme's sunset date, September 12, 2016. After that date, egg white lysozyme will be prohibited in organic processing.

Cyclohexylamine, Diethylaminoethanol and Octadecylamine

The USDA organic regulations include allowances on the National List for cyclohexylamine, diethylaminoethanol and octadcylamine as processing aids for use in organic processing at § 205.605(b) as follows:

Cyclohexylamine (CAS # 108-91-8)—for use only as a boiler water additive for packaging sterilization.

Diethylaminoethanol (CAS # 100-37-8)—for use only as a boiler water additive for packaging sterilization.

Octadecylamine (CAS # 124-30-1)—for use only as a boiler water additive for packaging sterilization.

Cyclohexylamine, diethylaminoethanol and octadcylamine were added to the National List on September 12, 2006 (71 FR 53299). The NOSB recommended the renewal of cyclohexylamine, diethylaminoethanol and octadcylamine during their 2011 sunset review. AMS published a notice renewing the allowances for cyclohexylamine, diethylaminoethanol and octadcylamine the National List on August 3, 2011 (76 FR 46595).

Subsequently, the NOSB considered the allowances for cyclohexylamine, diethylaminoethanol, and octadcylamine during the 2016 sunset review. AMS published two notices in the Federal Register announcing the NOSB public meetings and requesting public comments on September 8, 2014 (79 FR 53162) and on March 12, 2015 (80 FR 12975). Their purpose was to notify the public that the allowances for cyclohexylamine, diethylaminoethanol and octadcylamine would expire on September 12, 2016, if not reviewed by the NOSB and renewed by the Secretary. During their 2016 sunset review deliberation, the NOSB considered written comments received prior to and during the public meetings on all substances included in the 2016 sunset review. These written comments can be viewed at http://www.regulations.gov by searching for the document: AMS-NOP-14-0063 (October 2014 NOSB meeting) and AMS-NOP-15-0002 (April 2015 NOSB meeting). The NOSB also considered oral comments received during these public meetings which are included in the meeting transcripts available on the AMS Web site at http://www.ams.usda.gov/nop. During their 2016 sunset review, the NOSB considered technical reports on cyclohexylamine, diethylaminoethanol, and octadcylamine that were requested by and developed for the NOSB in 2001; these are available for review on the AMS Web site.

The September 2014 and April 2015 NOSB meeting notices requested information on the continued use of cyclohexylamin, diethylaminoethanol, or octadcylamine as boiler water additives in organic processing. Public comment in response to these requests informed the NOSB that organic processors are phasing out these materials. The comments provided limited information supporting the continued need for the use of cyclohexylamine, diethylaminoethanol, or octadcylamine as boiler water additives. The NOSB cited information from public comments and the potential for adverse human health and environmental impacts in their conclusion that the allowances for cyclohexylamine, diethylaminoethanol, or octadcylamine on § 205.605(b) are no longer necessary or essential in organic processing. Therefore, the NOSB recommended that cyclohexylamine, diethylaminoethanol, and octadcylamine be removed from the National List.

AMS published a proposed rule with a request for comments on December 16, 2015 (80 FR 78150). No public comments were received supporting the continued use of cyclohexylamine, diethylaminoethanol, and octadcylamine in organic processing. Consistent with the NOSB recommendation, this final rule amends § 205.605(b) by removing the allowances for cyclohexylamine, diethylaminoethanol, and octadcylamine. This amendment is effective on cyclohexylamine, diethylaminoethanol, and octadcylamine's current sunset date, September 12, 2016. After that date, these substances are prohibited in organic processing.

Tetrasodium Pyrophosphate

The USDA organic regulations include an exemption on the National List for tetrasodium pyrophosphate as an ingredient for use in organic processed products at § 205.605(b) as follows: Tetrasodium pyrophosphate (CAS # 7722-88-5)—for use only in meat analog products. In December 2001, tetrasodium pyrophosphate was petitioned for addition onto § 205.605 for use as an ingredient in organic food processing facilities. As recommended by the NOSB, tetrasodium pyrophosphate was added to the National List on September 12, 2006 (71 FR 53299). In the 2011 sunset review, the NOSB recommended renewing the allowance for tetrasodium pyrophosphate. Consistent with the NOSB recommendation, AMS published a notice in the Federal Register renewing the tetrasodium pyrophosphate exemption on the National List on August 3, 2011 (76 FR 46595).

For the 2016 sunset review, AMS published two notices in Federal Register announcing the NOSB public meetings and requesting comments on September 8, 2014 (79 FR 53162) and on March 12, 2015 (80 FR 12975). The notices informed the public that the tetrasodium pyrophosphate exemption would expire on September 12, 2016, if not reviewed by the NOSB and renewed by the Secretary and to request information on the necessity of tetrasodium pyrophosphate as an ingredient in organic food processing. During their 2016 sunset review deliberation, the NOSB considered written comments received prior to and during the public meetings on all substance exemptions included in the 2016 sunset review. These written comments can be viewed at http://www.regulations.gov by searching for the document: AMS-NOP-14-0063 (October 2014 public meeting) and AMS-NOP-15-0002 (April 2015 public meeting). The NOSB also considered oral comments received during these public meetings which are included in the meeting transcripts available on the AMS Web site at http://www.ams.usda.gov/nop. In addition, during their 2016 sunset review, the NOSB considered two technical reports on tetrasodium pyrophosphate that were requested by and developed for the NOSB in 2014 and 2002; these are available for review on the AMS Web site.

Public comment to the NOSB did not support a continued need for tetrasodium pyrophosphate in the production of organic processed products and informed that various alternative substances are available. Based on public comments and information in the 2014 technical report on tetrasodium pyrophosphate, the NOSB determined that there are alternatives to this substances that may be more compatible with organic production. Therefore, the NOSB determined that the allowance for tetrasodium pyrophosphate on § 205.605(b) is no longer necessary or essential for organic processed products and recommended that tetrasodium pyrophosphate be removed from the National List.

A proposed rule with a request for comments was published on December 16, 2015 (80 FR 78150), and no public comments were received supporting the continued use of tetrasodium pyrophosphate in processed organic products. Consistent with the NOSB recommendation, this final rule amends § 205.605(b) by removing the substance exemption for tetrasodium pyrophosphate. This amendment is effective on tetrasodium pyrophosphate's current sunset date, September 12, 2016. After that date, tetrasodium pyrophosphate will be prohibited in organic processing.

III. Related Documents

Two notices of public meetings with request for comments were published in Federal Register on September 8, 2014 (79 FR 53162) and on March 12, 2015 (80 FR 12975) to notify the public that substances included in the 2016 sunset review would expire on September 12, 2016, if not reviewed by the NOSB and renewed by the Secretary. The listings for egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate were added to the National List on September 12, 2006 (71 FR 53299). The proposed rule to remove the allowance for the use of these substances in organic handling was published on December 16, 2015 (80 FR 78150).

IV. Statutory and Regulatory Authority

OFPA, as amended (7 U.S.C. 6501-6522), authorizes the Secretary to make amendments to the National List based on proposed recommendations developed by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under § 205.607 of the USDA organic regulations. The National List Petition Guidelines (NOP 3011) are published in the NOP Handbook which is available on the AMS Web site, http://www.ams.usda.gov/nop. This describes the information to be included for all types of petitions submitted to amend the National List.1 AMS published a revised sunset review process in the Federal Register on September 16, 2013 (78 FR 56811).

1 These guidelines supersede the “Submission of Petitions of Substances for Inclusion on or Removal From the National List of Substances Allowed and Prohibited in Organic Production and Handling,” published January 18, 2007 in the Federal Register (72 FR 2167), which is now obsolete.

A. Executive Order 12866

This action has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.

B. Executive Order 12988

Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.

States and local jurisdictions are preempted under OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in section 6514(b) of OFPA. States are also preempted under sections 6503 through 6507 of OFPA from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of OFPA.

Pursuant to section 6507(b)(2) of OFPA, a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of OFPA, (b) not be inconsistent with OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.

Pursuant to section 6519(f) of OFPA, this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the authority of the Administrator of EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136(y)).

Section 6520 of OFPA provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

Pursuant to the requirements set forth in the RFA, AMS performed an economic impact analysis on small entities in the final rule published in the Federal Register on December 21, 2000 (65 FR 80548). AMS has also considered the economic impact of this action on small entities. The impact on entities affected by this proposed rule would not be significant. The effect of this proposed rule would be to prohibit the use of five nonorganic nonagricultural substances that have limited public support and may no longer be used since nonorganic nonagricultural alternatives to these substances have been developed and implemented by food processors. AMS concludes that the economic impact of removing the nonorganic nonagricultural substance, egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate would be minimal to small agricultural firms since alternative practices and nonagricultural products may be commercially available. As such, these substances are proposed to be removed from the National List under this rule. Accordingly, AMS certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.

According to USDA, National Agricultural Statistics Service (NASS), certified organic acreage exceeded 3.6 million acres in 2014.2 According to NOP's Accreditation and International Activities Division, the number of certified U.S. organic crop and livestock operations totaled over 19,470 in 2014. The list of certified operations is available on the NOP Web site at http://apps.ams.usda.gov/nop/. AMS believes that most of these entities would be considered small entities under the criteria established by the SBA. U.S. sales of organic food and non-food have grown from $1 billion in 1990 to $39.1 billion in 2014, an 11.3 percent growth over 2013 sales.3 In addition, the USDA has 80 accredited certifying agents who provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS Web site, at http://www.ams.usda.gov/nop. AMS believes that most of these accredited certifying agents would be considered small entities under the criteria established by the SBA. Certifying agents report 31,020 certified operations worldwide in 2015.4

2 U.S. Department of Agriculture, National Agricultural Statistics Service. September 2015. 2014 Certified Organic Productions Survey.

3 Organic Trade Association. 2014. Organic Industry Survey. www.ota.com.

4 USDA, AMS, National Organic Program, Organic INTEGRITY Database, https://apps.ams.usda.gov/integrity/.

D. Paperwork Reduction Act

No additional collection or recordkeeping requirements are imposed on the public by this rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.

E. Executive Order 13175

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

F. Comments Received on Proposed Rule AMS-NOP-15-0052; NOP-15-12

AMS received nine comments from two consumers, one certifying agent, and six manufacturers (of organic products and ingredients used in organic products) on proposed rule AMS-NOP-15-0052. These written comments can be viewed at http://www.regulations.gov by searching for the document: AMS-NOP-15-0052.

One comment presented general concerns about organic inspections that are not within the scope of this rule. One comment stated general opposition to all chemicals in organic production and agreed with the proposal to remove five nonorganic, nonagricultural substances from the National List.

Changes Requested But Not Made

The comments of a certifying agent and six manufacturers opposed the proposal to remove the allowance for egg white lysozyme in organic processing. These comments indicated that egg white lysozyme is used in the production of wine, beer and hard cheeses. The comments did not specify the prevalence of egg white lysozyme in organic processing or provide compelling information to explain why this substance is essential in organic processing. Therefore, AMS is implementing the NOSB recommendation to remove this substance from the National List.

No comments addressed the proposed removal of cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate.

Consistent with the NOSB recommendations, this final rule amends § 205.605 by removing egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate.

This amendment is effective on the current sunset date, September 12, 2016. After that date, these substances will be prohibited in organic processing.

List of Subjects in 7 CFR Part 205

Records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.

For the reasons set forth in the preamble, 7 CFR part 205 is amended as follows:

PART 205—NATIONAL ORGANIC PROGRAM 1. The authority citation for 7 CFR part 205 continues to read as follows: Authority:

7 U.S.C. 6501-6522.

§ 205.605 [Amended]
2. Amend § 205.605 by: A. In paragraph (a), remove the substance “Egg white lysozyme (CAS # 9001-63-2)”. B. In paragraph (b), remove the substances “Cyclohexylamine (CAS # 108-91-8)—for use only as a boiler water additive for packaging sterilization”; “Diethylaminoethanol (CAS # 100-37-8)—for use only as a boiler water additive for packaging sterilization”; “Octadecylamine (CAS # 124-30-1)—for use only as a boiler water additive for packaging sterilization”; and “Tetrasodium pyrophosphate (CAS # 7722-88-5)—for use only in meat analog products”. Dated: July 26, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-18108 Filed 8-2-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 13 and 406 [Docket No. FAA-2016-7004 Amdt. Nos. 13-38, 406-10] RIN 2120-AK90 Revisions to the Civil Penalty Inflation Adjustment Tables; Correction AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Interim final rule; correction.

SUMMARY:

The FAA is correcting an interim final rule titled “Revisions to the Civil Penalty Inflation Adjustment Tables” that it published in the Federal Register on July 5, 2016. That interim final rule was the catch-up inflation adjustment to civil penalty amounts that may be imposed for violations of Federal Aviation Administration (FAA) regulations, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. In that document, there were several errors that need to be corrected before the rule becomes effective. This document addresses those errors.

DATES:

This correction is effective on August 5, 2016.

FOR FURTHER INFORMATION CONTACT:

Cole R. Milliard, Attorney, Office of the Chief Counsel, Enforcement Division, AGC-300, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3452; email [email protected]

SUPPLEMENTARY INFORMATION:

Prior to the July 5 final rule's publication, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Department of Transportation (DOT) agency primarily responsible for developing and enforcing hazardous materials regulations, published its catch-up adjustments for civil penalties, including those for violations of 49 U.S.C. 5123(a)(3). The FAA is amending its catch-up adjustment for 49 U.S.C. 5123(a)(3) to harmonize it with PHMSA's.

Background

On July 5, 2016, the FAA published an interim final rule titled “Revisions to the Civil Penalty Inflation Adjustment Tables” (81 FR 43463). The intent of that rule is to implement the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law (Pub. L.) 101-410, as amended by the Debt Collection Improvement Act (DCIA) of 1996, Pub. L. 104-134, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Pub. L. 114-74, codified at 28 U.S.C. 2461 note.

The FCPIAA, DCIA, and the 2015 Act require Federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of penalty amounts. The amount of the adjustment must be made using a strict statutory formula that was discussed in the final rule and is corrected as indicated below.

As mentioned above, the FAA's interim final rule was published on July 5, 2016, and included an inflation adjustment for civil penalties associated with hazardous materials training violations under 49 U.S.C. 5123(a)(3). On June 29, 2016, prior to the FAA's civil penalty inflation adjustment publication, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the DOT agency primarily responsible for developing and enforcing hazardous materials regulations, also published its catch-up adjustments for civil penalties, including those for violations of 49 U.S.C. 5123(a)(3). PHMSA, however, came up with a different adjustment to the minimum penalty for training than the FAA. PHMSA read technical amendments made to section 5123(a)(3) in 2012 to be adjusting the minimum penalty back down from a 2009 PHMSA inflation adjustment. See Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 33010, 126 Stat. 405, 837, (2012); 74 FR 68701 (Dec. 29, 2009). It therefore concluded that 2012 was the year the minimum penalty was established or adjusted. FAA concluded that 2005 was the correct year upon which to base adjustments because Congress established the $450 minimum that year and did not change it in its 2012 amendments. Compare Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 7120, 119 Stat. 1144, 1905 (2005) with MAP-21, 126 Stat. at 837. Because PHMSA is the primary DOT agency in the area of hazardous materials safety, and because its calculation is reasonable, the FAA is correcting its catch-up adjustment to harmonize it with PHMSA's.

The FAA is also making technical corrections to its interim final rule. First, it is correcting the effective date noted in the table included in 14 CFR 13.301(c), to reflect the correct effective date of August 5, 2016 (not August 1, 2016). Second, the word “established” is replacing the word “set” when used in reference to the “catch-up adjustment” formula provided by the 2015 Act to make the text of the interim final rule consistent with the statutory text of the 2015 Act. Finally, the FAA is correcting the reference to “section 5123” in the hazmat adjustment example for 49 U.S.C. 5123(a)(1), provided in the background section of the interim final rule, to specifically reference section 5123(a)(1).

Correction

In FR Doc. 2016-7004, beginning on page 43463 in the Federal Register of July 5, 2016, make the following corrections:

1. On page 43464, in the second column, under the heading “Background”, in the second paragraph, correct the seventh line by replacing the word “set” with “established”.

2. On page 43464, in the third column, correct the ninth line from the top by replacing the word “set” with “established”.

3. On page 43464, in the third column, correct subparagraph (1) by replacing the word “set” with “established” in both places it is used, replacing the word “reset” with “adjusted” and replacing the words “Section 5123” with “Section 5123(a)(1)”.

4. On page 43464, correct the heading of the second column of the table by replacing the word “set” with “established”.

5. On page 43464, correct the heading of the third column of the table by replacing the word “set” with “established”.

6. On page 43464, correct the second column of the table by replacing “2005” with “2012” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).

7. On page 43464, correct the fourth column of the table by replacing “1.19397” with “1.02819” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).

8. On page 43464, correct the fifth column of the table by replacing “537” with “463” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).

§ 13.301 [Corrected]
9. On page 43467, correct § 13.301 by revising paragraph (c) to read as follows:

(c) Minimum and maximum civil monetary penalties within the jurisdiction of the FAA are as follows:

Table of Minimum and Maximum Civil Monetary Penalty Amounts for Certain Violations Occurring on or After August 5, 2016 United States Code citation Civil monetary penalty description Minimum penalty amount New or adjusted minimum
  • penalty amount
  • Maximum penalty amount when last established or
  • adjusted by
  • Congress
  • New or adjusted maximum penalty amount
    49 U.S.C. 5123(a), subparagraph (1) Violation of hazardous materials transportation law Deleted 7/6/2012 N/A $75,000 per violation, adjusted 7/6/2012 $77,114. 49 U.S.C. 5123(a), subparagraph (2) Violation of hazardous materials transportation law resulting in death, serious illness, severe injury, or substantial property destruction Deleted 7/6/2012 N/A $175,000 per violation, adjusted 7/6/2012 $179,933. 49 U.S.C. 5123(a), subparagraph (3) Violation of hazardous materials transportation law relating to training $450 per violation, adjusted
  • 7/6/2012
  • $463 $75,000 per violation, adjusted 7/6/2012 $77,114.
    49 U.S.C. 46301(a)(1) Violation by a person other than an individual or small business concern under 49 U.S.C. 46301(a)(1)(A) or (B) N/A N/A $25,000 per violation, established 12/12/2003 $32,140. 49 U.S.C. 46301(a)(1) Violation by an airman serving as an airman under 49 U.S.C. 46301(a)(1)(A) or (B) (but not covered by 46301(a)(5)(A) or (B) N/A N/A $1,100 per violation, adjusted 12/12/2003 $1,414. 49 U.S.C. 46301(a)(1) Violation by an individual or small business concern under 49 U.S.C. 46301(a)(1)(A) or (B) (but not covered in 49 U.S.C. 46301(a)(5)) N/A N/A $1,100 per violation, adjusted 12/12/2003 $1,414. 49 U.S.C. 46301(a)(3) Violation of 49 U.S.C. 47107(b) (or any assurance made under such section) or 49 U.S.C. 47133 N/A N/A Increase above otherwise applicable maximum amount not to exceed 3 times the amount of revenues that are used in violation of such section No change. 49 U.S.C. 46301(a)(5)(A) Violation by an individual or small business concern (except an airman serving as an airman) under 49 U.S.C. 46301(a)(5)(A)(i) or (ii) N/A N/A $10,000 per violation, established 12/12/2003 $12,856. 49 U.S.C. 46301(a)(5)(B)(i) Violation by an individual or small business concern related to the transportation of hazardous materials N/A N/A $10,000 per violation, established 12/12/2003 $12,856. 49 U.S.C. 46301(a)(5)(B)(ii) Violation by an individual or small business concern related to the registration or recordation under 49 U.S.C. chapter 441, of an aircraft not used to provide air transportation N/A N/A $10,000 per violation, established 12/12/2003 $12,856. 49 U.S.C. 46301(a)(5)(B)(iii) Violation by an individual or small business concern of 49 U.S.C. 44718(d), relating to limitation on construction or establishment of landfills N/A N/A $10,000 per violation, established 12/12/2003 $12,856. 49 U.S.C. 46301(a)(5)(B)(iv) Violation by an individual or small business concern of 49 U.S.C. 44725, relating to the safe disposal of life-limited aircraft parts N/A N/A $10,000 per violation, established 12/12/2003 $12,856. 49 U.S.C. 46301(b) Tampering with a smoke alarm device N/A N/A $2,000 per violation, established 12/22/1987 $4,126. 49 U.S.C. 46302 Knowingly providing false information about alleged violation involving the special aircraft jurisdiction of the United States N/A N/A $10,000 per violation, established 10/12/1984 $22,587. 49 U.S.C. 46318 Interference with cabin or flight crew N/A N/A $25,000, established 4/5/2000 $34,172. 49 U.S.C. 46319 Permanent closure of an airport without providing sufficient notice N/A N/A $10,000 per day, established 12/12/2003 $12,856. 49 U.S.C. 47531 Violation of 49 U.S.C. 47528-47530, relating to the prohibition of operating certain aircraft not complying with stage 3 noise levels N/A N/A See 49 U.S.C. 46301(a)(1)(A) and (a)(5), above No change.
    Issued under authority provided by 28 U.S.C. 2461 and 49 U.S.C. 106(f), 44701(a), and 46301 in Washington, DC, on July 26, 2016. Lirio Liu, Director, Office of Rulemaking.
    [FR Doc. 2016-18514 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-5909; Special Conditions No. 25-626-SC] Special Conditions: The Boeing Company Model 787-9 Series Airplane; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats With Inflatable and 3-Point Restraint Systems AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for The Boeing Company (Boeing) Model 787-9 series airplane. This airplane, as modified by Boeing, will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. These design features are single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems requiring dynamic testing. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Boeing on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-5909 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Gardlin, FAA, Airframe and Cabin Safety branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2136; facsimile 425-227-1320.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On January 29, 2016, Boeing applied for a change to type certificate no. T00021SE to install single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems in the Model 787-9 airplane.

    This airplane is a twin-engine transport-category airplane. It has a 420-passenger capacity and a maximum takeoff weight of 553,000 lbs.

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR), 21.101, Boeing must show that the Model 787-9 airplane meets the applicable provisions of the regulations listed in type certificate no. T00021SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 787-9 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    In addition to the applicable airworthiness regulations and special conditions, the Model 787-9 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The Model 787-9 airplane will incorporate the following novel or unusual design features:

    Single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems requiring dynamic testing.

    Discussion

    Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.

    Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat that is positioned at more than an 18-degree angle to the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that prevents the head from contacting injurious objects. The FAA concluded that a maximum 18-degree angle would provide an adequate level of safety based on tests that were performed at the time, and thus adopted that standard.

    Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in 14 CFR 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing; although § 25.785 does require that occupants of all seats that are occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.

    To address recent research findings and accommodate commercial demand, the FAA developed a methodology to address all fully side-facing seats (i.e., seats oriented in the airplane with the occupant facing 90-degrees to the direction of airplane travel) and has documented those requirements in a set of proposed new special conditions. The FAA issued policy statement PS-ANM-25-03-R1 on November 12, 2012, titled, “Technical Criteria for Approving Side-Facing Seats,” which conveys the injury criteria to be used in the special conditions. Some of those criteria are applicable to oblique seats but others are not, because the motion of an occupant in an oblique seat is different from the motion of an occupant in a fully side-facing seat during emergency landing conditions.

    For shallower installation angles, the FAA has granted equivalent level of safety (ELOS) findings for oblique seat installations on the premise that an occupant's kinematics in an oblique seat during a forward impact would result in the body aligning with the impact direction. We predicted that the occupant response would be similar to an occupant of a forward-facing seat, and would produce a level of safety equivalent to that of a forward-facing seat. These ELOS findings were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of issuance of the ELOS. However, review of dynamic test results for many of these oblique seat installations raised concerns that the premise was not correct. Potential injury mechanisms exist that are unique to oblique seats and are not mitigated by the ELOS self-alignment approach even if the occupant appears to respond similarly to a forward-facing seat.

    The proposed Model 787 airplane oblique business-class seat installations are novel such that the current Model 787 airplane certification basis does not adequately address occupant protection expectations with regard to the occupant's neck and spine for seat configurations that are oriented at an angle greater than 18-degrees from the airplane centerline. The FAA has previously issued special conditions no. 25-580-SC for the 787, which reflected the best available criteria at the time. However, as the FAA continues research into the injury mechanisms associated with obliquely oriented seats and the means to measure those injuries, the criteria evolve. These special conditions therefore reflect refinements beyond special conditions no. 25-580-SC, and that incorporate the knowledge gained from research. The intent of the special conditions is unchanged. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Boeing proposes to install on Model 787-9 airplanes 3-point restraint systems and airbag devices as a means to protect each occupant from serious injury in the event of an emergency landing, as required by § 25.562(c)(5). Shoulder harnesses have been widely used on attendant seats, flight-deck seats, business jets, and general-aviation airplanes to reduce occupant head injury in the unlikely event of an emergency landing. A passenger-seat 3-point restraint system is defined as a safety belt (pelvic restraint), a single-belt shoulder harness, and the seat structure associated with the harness attachment points. The 3-point restraint system is intended to protect the occupant from serious injury, and the means of protection must take into consideration a range of occupant stature, ranging from a 2-year old child to a 95th percentile male, in addition to the oblique seat orientation. The use of 3- point restraint systems on transport-category airplane passenger seats is rare; however, existing regulations provide an adequate safety standard for these installations. The FAA has issued advisory material on acceptable means of compliance for combined shoulder-harness and safety-belt restraint systems, such as the 3-point restraint system.

    Inflatable airbag devices are designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, thereby reducing the head injury criteria (HIC) measurement. While inflatable airbags are now standard in the automotive industry, the use of an inflatable airbag device is novel for commercial aviation. Special conditions exist for airbags installed on seat belts, known as inflatable lapbelts, which have been installed on Boeing passenger seats. The FAA has also issued special conditions for structure-mounted airbags on the Model 787-9 that are similar to those for inflatable lapbelts, but that account for the differences between the two types of airbag installations.

    Applicability

    These special conditions are applicable to the following Boeing Model 787-9 airplanes: AAL ZB 446 (Project PS15-0762), AMX ZB 676 (Project PS15-0588), XIA ZB 812 (Project PS16-0060), and JAL ZB 424 (Project PS15-0723).

    Conclusion

    This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

    The substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 787-9 airplanes.

    In addition to the requirements of § 25.562:

    1. Head-Injury Criteria

    Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

    2. Body-to-Wall/Furnishing Contact

    If a seat is installed aft of structure (e.g. interior wall or furnishings) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and/or tests may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, if an airbag device is present, different yaw angles could result in different airbag-device performance, and additional analysis or separate tests may be necessary to evaluate performance.

    3. Neck Injury Criteria

    The seating system must protect the occupant from experiencing serious neck injury. If an airbag device is present, the assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

    a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij = Fz/Fzc + My/Myc, and Nij critical values are:

    i. Fzc = 1530 lb for tension ii. Fzc = 1385 lb for compression iii. Myc = 229 lb-ft in flexion iv. Myc = 100 lb-ft in extension

    b. In addition, peak upper-neck Fz must be below 937 lb of tension and 899 lb of compression.

    c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

    d. The neck must not impact any surface that would produce concentrated loading on the neck.

    4. Spine and Torso Injury Criteria

    a. The lumbar spine tension (Fz) cannot exceed 1200 lb.

    b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.

    c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

    5. Pelvis Criteria

    Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

    6. Femur Criteria

    Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211-1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

    7. ATD and Test Conditions

    Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g., armrests or walls) installed.

    Structure-Mounted Airbag and Inflatable Lapbelt Special Conditions

    When present, the structure-mounted airbag device must meet special conditions no. 25-605-SC, “Boeing Model 787-9 Airplane; Structure-Mounted Airbags.” When present, the inflatable lapbelt(s) must meet special conditions no. 25-431-SC, “Boeing Model 787 Series Airplanes; Seats with Inflatable Lapbelts.”

    Note:

    As indicated in the special conditions above, airbags and inflatable lapbelts must be shown to not affect emergency-egress capabilities in the main aisle, cross-aisle, and passageway.

    Issued in Renton, Washington, on July 27, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18449 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-4136; Special Conditions No. 25-621-SC] Special Conditions: The Boeing Company Model 777-300ER Airplanes; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable Restraints AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued to The Boeing Company (Boeing) for their Model 777-300ER airplane. This airplane has novel or unusual design features associated with single-occupant oblique (side-facing) seats equipped with inflatable restraints. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed at an angle of greater than 18 degrees, but substantially less than 90 degrees, to the vertical plane containing the centerline of the airplane, nor for inflatable restraints or related airbag devices. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Boeing on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-4136 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane. In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received.

    The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On December 24, 2015, Boeing Commercial Airplanes applied for a design change to type certificate no. T00001SE for single-occupant seats installed at an oblique angle to the vertical plane containing the centerline of the airplane, and equipped with inflatable lapbelts, in the Boeing Model 777-300ER airplane. The Model 777-300ER airplane is a wide body, swept wing, conventional tail, twin-engine, turbofan-powered, transport-category airplane.

    Type Certification Basis

    The type certification basis for the Model 777-300ER airplane is 14 CFR part 25, effective February 1, 1965, as amended by Amendments 25-1 through 25-98, including special conditions 25-295-SC, 25-187A-SC, and 25-569-SC. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-300ER airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-300ER airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. T00001SE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into type certificate no. T00001SE after type certification approval of the 777-300ER.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The Boeing Model 777-300ER airplane will incorporate the following novel or unusual design features:

    The seating configuration proposed by Boeing in certification plan no. 17174, revision A, “Installation of B/E Aerospace Super-Diamond Model Business Class Seats on WE736,” consists of Super Diamond model oblique (side-facing), business-class passenger seats installed in a Boeing Model 777-300ER airplane. These seats will also incorporate inflatable restraints.

    The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed in the proposed configuration. To provide a level of safety equivalent to that afforded to occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. Although special conditions no. 25-187A-SC, 25-295-SC, and 25-569-SC already apply to the 777-300ER, they do not directly address the complex occupant-loading conditions introduced by this oblique (side-facing) seat configuration, nor do they reflect the latest findings of on-going research.

    Discussion

    Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.

    Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat that is positioned at more than an 18-degree angle to the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that prevents the head from contacting injurious objects. The FAA concluded that a maximum 18-degree angle would provide an adequate level of safety based on tests that were performed at the time, and thus adopted that standard.

    Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in § 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing. However, § 25.785 does require that occupants of all seats occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.

    To address recent research findings and accommodate commercial demand, the FAA developed a methodology to address all fully side-facing seats (i.e., seats oriented in the airplane with the occupant facing 90 degrees to the direction of airplane travel) and has documented those requirements in a set of proposed new special conditions. The FAA issued policy statement PS-ANM-25-03-R1 on November 12, 2012, titled, “Technical Criteria for Approving Side-Facing Seats,” which conveys the injury criteria to be used in the special conditions. Some of those criteria are applicable to oblique seats, but others are not because the motion of an occupant in an oblique seat is different from the motion of an occupant in a fully side-facing seat during emergency-landing conditions.

    For shallower installation angles, the FAA has granted equivalent level of safety (ELOS) findings for oblique seat installations on the premise that an occupant's kinematics in an oblique seat during a forward impact would result in the body aligning with the impact direction. We predicted that the occupant response would be similar to an occupant of a forward-facing seat, and would produce a level of safety equivalent to that of a forward-facing seat. These ELOS findings were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of issuance of the ELOS. However, review of dynamic test results for many of these oblique seat installations raised concerns that the premise was not correct. Potential injury mechanisms exist that are unique to oblique seats and are not mitigated by the ELOS self-alignment approach even if the occupant appears to respond similarly to a forward-facing seat.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane. These special conditions can be applied to oblique seats installed in accordance with Boeing certification plan no. 17174, revision A, “Installation of B/E Aerospace Super-Diamond Business Class Seats on WE736.”

    The FAA will amend these special conditions, or issue new special conditions, should unusual occupant response in the required dynamic tests, or additional research into occupant-injury mechanisms, indicate that these special conditions are inadequate. Any future special conditions would include due public notice for comment.

    Conclusion

    This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.

    Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the Boeing Model 777-300ER airplane, as modified by Boeing, is imminent, the FAA finds that good cause exists to make these special conditions effective upon publication in the Federal Register.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-300ER airplanes modified by Boeing.

    Oblique (Side-Facing) Seats Special Conditions

    In addition to the requirements of § 25.562:

    1. Head Injury Criteria (HIC)

    Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat and related structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

    2. Body-to-Wall/Furnishing Contact

    If a seat is installed aft of structure (e.g. interior wall or furnishings) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, if different yaw angles could result in different airbag device performance, then additional analysis or separate tests may be necessary to evaluate performance.

    3. Neck Injury Criteria

    a. The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

    b. The Nij, calculated in accordance with 49 CFR 571.208, must be below 1.0, where Nij =Fz/Fzc + My/Myc, and Nij critical values are:

    i. Fzc = 1530 lb for tension ii. Fzc = 1385 lb for compression iii. Myc = 229 lb-ft in flexion iv. Myc = 100 lb-ft in extension

    c. In addition, peak upper-neck Fz must be below 937 lb in tension and 899 lb in compression.

    d. Rotation of the head about its vertical axis relative to the torso is limited to 105 degrees in either direction from forward-facing.

    e. The neck must not impact any surface that would produce concentrated loading on the neck.

    4. Spine and Torso Injury Criteria

    a. The lumbar spine tension (Fz) cannot exceed 1200 lb.

    b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-axis direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) Recommended Practice J211/1, “Instrumentation for Impact Test-Part 1-Electronic Instrumentation.”

    c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

    5. Pelvis Criteria

    Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

    6. Femur Criteria

    Axial rotation of the upper leg (about the Z-axis of the femur, per SAE Recommended Practice J211/1) must be limited to 35 degrees in the strike direction from the nominal seating position. Evaluation during rebound need not be considered.

    7. ATD and Test Conditions

    Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD For Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g. armrests or walls) installed.

    Inflatable Lapbelt Special Conditions

    The inflatable lapbelts must meet special conditions no. 25-187A-SC, “Boeing Model 777 Series Airplanes; Seats with Inflatable Lapbelts.”

    Note:

    As indicated in special conditions no. 25-187A-SC, inflatable lapbelts must be shown to not affect emergency-egress capabilities in the main aisle, cross-aisle, and passageway.

    Issued in Renton, Washington, on July 8, 2016. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18323 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-7294; Special Conditions No. 25-628-SC] Special Conditions: Gulfstream Aerospace Corporation Model GVII-G500 Airplanes; Interaction of Systems and Structures Through a Three-Axis Fly-by-Wire System AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVII-G500 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is a fly-by-wire flight-control system that governs the pitch, yaw, and roll axes of the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Gulfstream on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-7294 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Walt Sippel, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2774; facsimile 425-227-1320.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On March 29, 2012, Gulfstream applied for a type certificate for their new Model GVII-G500 airplane. This transport-category, twin-engine airplane will be a business jet capable of accommodating up to 19 passengers. The maximum takeoff weight is 91,000 lbs.

    Type Certification Basis

    Under title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Model GVII-G500 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-129.

    If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the Model GVII-G500 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, Model GVII-G500 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36. The FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

    Novel or Unusual Design Features

    The Model GVII-G500 airplane will incorporate the following novel or unusual design feature:

    A fly-by-wire flight-control system that governs the pitch, yaw, and roll axes of the airplane.

    Discussion

    Active flight-control systems are capable of providing automatic responses to inputs from sources other than pilots. Active flight-control systems have been expanded in function, effectiveness, and reliability such that fly-by-wire flight controls, without a manual backup system to address system failures, are becoming standard equipment. As a result of these advancements in flight-control technology, the current safety standards contained in 14 CFR part 25 do not provide an adequate basis to address an acceptable level of safety for airplanes so equipped. Instead, certification of these systems has been achieved by issuance of special conditions under the provisions of § 21.16.

    For example, stability-augmentation systems (SASs), and to a lesser extent load alleviation systems (LASs), have been used on transport airplanes for many years. Past approvals of these systems were based on individual findings of equivalent level of safety with existing rules and through special conditions. Advisory circular 25.672-1 was issued November 11, 1983, to provide an equivalent means of compliance under the provisions of § 21.21(b)(1) for SAS, LAS, and flutter control systems (FCSs), another type of active flight-control system.

    Although autopilots are also considered active flight-control systems, their control authority has historically been limited such that the consequences of system failures could be readily counteracted by the pilot. Now, autopilot functions are integrated into the primary flight controls and given sufficient control authority to maneuver the airplane to its structural design limits. This advanced technology, with its expanded authority, requires a new approach to account for the interaction of control systems and structures.

    The usual deterministic approach to defining the loads envelope contained in 14 CFR part 25 does not fully account for system effectiveness and system reliability. These automatic systems may be inoperative, or may operate in a degraded mode with less than full system authority. Therefore, it is necessary to determine the structural factors of safety and operating margins such that the joint probability of structural failures, due to application of loads during system malfunctions, is not greater than that found in airplanes equipped with earlier-technology control systems. To achieve this objective, it is necessary to define the failure conditions with their associated frequency of occurrence to determine the structural factors of safety and operating margins that will ensure an acceptable level of safety.

    Earlier automatic control systems usually provided two states; either fully functioning or totally inoperative. The flightcrew readily detected these conditions. The new active flight-control systems have failure modes that allow the system to function in a degraded mode without full authority. The flightcrew do not readily detect these degraded modes. Therefore, monitoring systems are required on these new systems to provide an annunciation of degraded system capability.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Gulfstream Model GVII-G500 airplane. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only a certain novel or unusual design feature on one model series of airplane. It is not a rule of general applicability.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, good cause exists for adopting these special conditions upon publication in the Federal Register.

    The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Gulfstream Model GVII-G500 airplane.

    For airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of 14 CFR part 25, subparts C and D.

    The following criteria must be used for showing compliance with these special conditions for airplanes equipped with flight-control systems, autopilots, stability-augmentation systems, load-alleviation systems, flutter-control systems, fuel-management systems, and other systems that either directly, or as a result of failure or malfunction, affect structural performance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.

    1. The criteria defined herein only address the direct structural consequences of the system responses and performance. They cannot be considered in isolation, but should be included in the overall safety evaluation of the airplane. These criteria may, in some instances, duplicate standards already established for this evaluation. These criteria are only applicable to structure the failure of which could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements, when operating in the system degraded or inoperative mode, are not provided in these special conditions.

    2. Depending upon the specific characteristics of the airplane, additional studies that go beyond the criteria provided in these special conditions may be required to demonstrate the airplane's capability to meet other realistic conditions, such as alternative gust or maneuver descriptions for an airplane equipped with a load-alleviation system.

    3. The following definitions are applicable to these special conditions.

    a. Structural performance: Capability of the airplane to meet the structural requirements of 14 CFR part 25.

    b. Flight limitations: Limitations that can be applied to the airplane flight conditions following an in-flight occurrence, and that are included in the airplane flight manual (e.g., speed limitations, avoidance of severe weather conditions, etc.).

    c. Operational limitations: Limitations, including flight limitations, that can be applied to the airplane operating conditions before dispatch (e.g., fuel, payload and master minimum-equipment list limitations).

    d. Probabilistic terms: Terms such as probable, improbable, and extremely improbable, as used in these special conditions, are the same as those used in § 25.1309.

    e. Failure condition: This term is the same as that used in § 25.1309. However, these special conditions apply only to system-failure conditions that affect the structural performance of the airplane (e.g., system-failure conditions that induce loads, change the response of the airplane to inputs such as gusts or pilot actions, or lower flutter margins).

    Effects of Systems on Structures

    1. General. The following criteria will be used in determining the influence of a system and its failure conditions on the airplane structure.

    2. System fully operative. With the system fully operative, the following apply:

    a. Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in 14 CFR part 25, subpart C (or defined by special conditions or equivalent level of safety in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions, or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds, or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.

    b. The airplane must meet the strength requirements of 14 CFR part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure that the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.

    c. The airplane must meet the aeroelastic stability requirements of § 25.629.

    3. System in the failure condition. For any system-failure condition not shown to be extremely improbable, the following apply:

    a. At the time of occurrence. Starting from 1g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after the failure.

    i. For static-strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety is defined in Figure 1, below.

    ER03AU16.000

    ii. For residual-strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in special condition 3.a.(i). For pressurized cabins, these loads must be combined with the normal operating differential pressure.

    iii. Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speeds beyond VC/MC, freedom from aeroelastic instability must be shown to increased speeds, so that the margins intended by § 25.629(b)(2) are maintained.

    iv. Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.

    b. For the continuation of the flight. For the airplane in the system-failed state, and considering any appropriate reconfiguration and flight limitations, the following apply:

    i. The loads derived from the following conditions (or used in lieu of the following conditions) at speeds up to VC/MC (or the speed limitation prescribed for the remainder of the flight) must be determined:

    1. The limit symmetrical maneuvering conditions specified in §§ 25.331 and 25.345.

    2. the limit gust and turbulence conditions specified in §§ 25.341 and 25.345.

    3. the limit rolling conditions specified in § 25.349, and the limit unsymmetrical conditions specified in §§ 25.367, and 25.427(b) and (c).

    4. the limit yaw-maneuvering conditions specified in § 25.351.

    5. the limit ground-loading conditions specified in §§ 25.473 and 25.491.

    ii. For static-strength substantiation, each part of the structure must be able to withstand the loads in special condition 3.b.(i), multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in Figure 2, below.

    ER03AU16.001 Where: Qj = (Tj)(Pj) Qj = Probability of being in failure mode j Tj = Average time spent in failure mode j (in hours) Pj = Probability of occurrence of failure mode j (per hour) Note:

    If Pj is greater than 10−3 per flight hour, then a 1.5 factor of safety must be applied to all limit load conditions specified in 14 CFR part 25, subpart C.

    iii. For residual-strength substantiation, the airplane must be able to withstand two-thirds of the ultimate loads defined in paragraph 3.b.(ii) of these special conditions. For pressurized cabins, these loads must be combined with the normal operating differential pressure.

    iv. If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance, then their effects must be taken into account.

    v. Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3, below. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).

    ER03AU16.002 V′ = Clearance speed as defined by § 25.629(b)(2). V″ = Clearance speed as defined by § 25.629(b)(1). Where: Qj = (Tj)(Pj) where: Qj = Probability of being in failure mode j Tj = Average time spent in failure mode j (in hours) Pj = Probability of occurrence of failure mode j (per hour) Note:

    If Pj is greater than 10−3 per flight hour, then the flutter clearance speed must not be less than V″.

    vi. Freedom from aeroelastic instability must also be shown up to V′ in Figure 3, above, for any probable system-failure condition, combined with any damage required or selected for investigation by § 25.571(b).

    b. Consideration of certain failure conditions may be required by other sections of 14 CFR part 25 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10−9, criteria other than those specified in this paragraph may be used for structural substantiation to show continued safe flight and landing.

    4. Failure indications. For system-failure detection and indication, the following apply:

    a. The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by 14 CFR part 25, or that significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems, to achieve the objective of this requirement. These certification-maintenance requirements must be limited to components that are not readily detectable by normal detection-and-indication systems, and where service history shows that inspections will provide an adequate level of safety.

    b. The existence of any failure condition, not extremely improbable, during flight, that could significantly affect the structural capability of the airplane, and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of 14 CFR part 25, subpart C below 1.25, or flutter margins below V″, must be signaled to the crew during flight.

    5. Dispatch with known failure conditions. If the airplane is to be dispatched in a known system-failure condition that affects structural performance, or that affects the reliability of the remaining system to maintain structural performance, then the provisions of these special conditions must be met, including the provisions of special condition 2 for the dispatched condition, and special condition 3 for subsequent failures. Expected operational limitations may be taken into account in establishing Pj as the probability of failure occurrence for determining the safety margin in Figure 1. Flight limitations and expected operational limitations may be taken into account in establishing Qj as the combined probability of being in the dispatched failure condition and the subsequent failure condition for the safety margins in Figures 2 and 3. These limitations must be such that the probability of being in this combined failure state, and then subsequently encountering limit load conditions, is extremely improbable. No reduction in these safety margins is allowed if the subsequent system-failure rate is greater than 10−3 per hour.

    Issued in Renton, Washington, on July 27, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18448 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-3872; Special Conditions No. 25-629-SC] Special Conditions: Embraer S.A. Model EMB-545 and EMB-550 airplanes, Synthetic Vision System and Enhanced Flight Vision System on Head-Up Display AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Embraer S.A. (Embraer) Model EMB-545 and EMB-550 airplanes. These airplanes will have a novel or unusual design feature associated with a vision system that displays video imagery on the head-up display. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Embraer S.A. on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-3872 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Dale Dunford, FAA, Airplane and Flightcrew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2239; facsimile 425-227-1320.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On October 9, 2014, Embraer applied for a change to Type Certificate No. TC00062IB for a synthetic vision system (SVS) and enhanced flight vision system (EFVS) on a head-up display (HUD) in Model EMB-545 and EMB-550 airplanes. These airplanes are business jets capable of accommodating up to 9 passengers (EMB-545) or 12 passengers (EMB-550).

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer must show that the Model EMB-545 and EMB-550 airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. TC00062IB, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-545 and EMB-550 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, Embraer Model EMB-545 and EMB-550 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

    Novel or Unusual Design Features

    The Embraer Model EMB-545 and EMB-550 airplanes will incorporate the following novel or unusual design feature: an enhanced-flight vision system and synthetic vision system that display video imagery on a head-up display.

    Discussion

    Video display on the HUD constitutes new and unusual technology for which the FAA has no certification criteria. Section 25.773 does not permit visual distortions and reflections in the pilot's view out the airplane windshield that could interfere with the pilot's normal duties, and was not written in anticipation of such technology. Special conditions are therefore issued as prescribed under the provisions of § 21.16.

    For many years the FAA has approved, on transport-category airplanes, the use of HUD that display flight symbols without a significant visual obstruction of the outside view. When the FAA began to evaluate the display of enhanced vision-system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view, through the airplane windshield, that interferes with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ in some ways, they have one thing in common: the potential for interference with the outside view through the airplane windshield.

    Although the pilot may be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the vision-system video may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the vision-system image.

    Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of these special conditions is to provide the unique pilot-compartment-view requirements for the EFVS/SVS installation.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Embraer Model EMB-545 and EMB-550 airplanes. Should Embraer apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register.

    The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions apply to all Synthetic Vision System (SVS) and Enhanced Flight Vision System (EFVS) on Head-Up Display (HUD) installations on the Embraer Model EMB-545 and EMB-550 airplanes in lieu of the requirements of § 25.773 at Amendment 25-129:

    1. The synthetic vision system (SVS) or enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.

    2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS or EFVS device must meet the following requirements:

    a. The SVS or EFVS design must minimize unacceptable display characteristics or artifacts (e.g. noise, “burlap” overlay, running water droplets, terrain shadowing against a dark background) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

    b. Control of SVS or EFVS image-display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the display that would distract the pilot, impairing the pilot's ability to detect and identify visual references, masking of flight hazards, or otherwise degrading task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (e.g., low-visibility instrument approach).

    c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS or EFVS image on demand, without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.

    d. The SVS or EFVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, wind-shear guidance, traffic-alert and collision-avoidance system (TCAS) resolution advisories, or unusual attitude recovery cues.

    e. The SVS or EFVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (i.e., conformal) to the external scene. In addition, the SVS or EFVS image and the HUD symbols—when considered singly or in combination—must not be misleading, cause pilot confusion, or increase workload. Airplane attitudes or cross-wind conditions may cause certain symbols (e.g., the zero-pitch line or flight-path vector) to reach field-of-view limits, such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed, but with an altered appearance that makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”). The combined use of symbology and runway image may not be used for path monitoring when path symbology is no longer conformal.

    f. A HUD system installed to display SVS or EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.

    3. The display of the SVS or EFVS image must not degrade the safety and performance of the pilot tasks associated with the use of the pilot-compartment view. Pilot tasks that must not be degraded by the SVS or EFVS image include:

    a. Detection, accurate identification, and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.

    b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

    4. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the SVS or EFVS for functions that have not been found to be acceptable.

    Issued in Renton, Washington, on July 27, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18447 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P`
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-4116; Special Conditions No. 25-627-SC] Special Conditions: FedEx Express Corporation, Boeing Model 767-300F; Enhanced Flight Vision System AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Boeing Model 767-300F airplane. This airplane, as modified by the FedEx Express Corporation (FedEx), will have a novel or unusual design feature associated with an advanced, enhanced flight vision system (EFVS). The EFVS consists of a head-up display (HUD) system modified to display forward-looking infrared (FLIR) imagery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on FedEx on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-4116 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 8 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Dale Dunford, FAA, Transport Standards Staff, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2239; fax 425-227-1320; email [email protected]

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On November 30, 2012, FedEx applied for a supplemental type certificate for the installation and operation of a HUD and an EFVS in the Boeing Model 767-300F airplane. The original type certificate for the 767-300F airplanes is A1NM. The Boeing Model 767-300F is a transport-category, cargo-carrying airplane that operates with a crew of two.

    Type Certification Basis

    Under the provisions of 14 CFR 21.101, FedEx must show that the Boeing Model 767-300F airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A1NM, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations are listed in Type Certificate Data Sheet No. A1NM, which covers all variants of Boeing Model 767 airplanes. In addition, the certification basis includes certain special conditions and exemptions that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 767-300F airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Model 767-300F airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19 in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The Boeing Model 767-300F airplane will incorporate the following novel or unusual design feature: An EFVS that projects a video image derived from a FLIR camera through the HUD. The EFVS image is projected in the center of the “pilot compartment view,” which is governed by § 25.773. The image is displayed with HUD symbology and overlays the forward outside view. Therefore, § 25.773 does not contain appropriate safety standards for the EFVS display.

    Discussion

    Video display on the HUD constitutes new and unusual technology for which the FAA has no certification criteria. Section 25.773 does not permit visual distortions and reflections in the pilot's view out the airplane windshield that could interfere with the pilot's normal duties, and was not written in anticipation of such technology. Special conditions are therefore issued as prescribed under the provisions of § 21.16.

    For many years, the FAA has approved, on transport-category airplanes, the use of HUD that display flight symbols without a significant visual obstruction of the outside view. When the FAA began to evaluate the display of enhanced vision-system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view, through the airplane windshield, that interfere with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. EVS video has the potential for causing interference with the outside view through the airplane windshield.

    Although the pilot may be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the EVS video may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the vision-system image.

    Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of these special conditions is to provide the unique pilot-compartment-view requirements for the EFVS installation.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 767-300F airplane. Should FedEx apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A1NM to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on Boeing 767-300F airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Boeing Model 767-300F airplanes modified by FedEx.

    1. Enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.

    2. To avoid unacceptable interference with the safe and effective use of the pilot compartment view, the EFVS device must meet the following requirements:

    a. The EFVS design must minimize unacceptable display characteristics or artifacts (e.g., noise, “burlap” overlay, running water droplets) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

    b. Automatic control of EFVS display brightness must be sufficiently effective, in dynamically changing background (ambient) lighting conditions, to prevent full or partial blooming of the display that would distract the pilot, impair the pilot's ability to detect and identify visual references, mask flight hazards, or otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (e.g., low visibility instrument approach).

    c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the EFVS image on demand without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.

    d. The EFVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, traffic alert and collision avoidance system (TCAS) resolution advisories, or unusual attitude recovery cues.

    e. The EFVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (i.e., conformal) to the external scene. In addition, the EFVS image and the HUD symbols, when considered singly or in combination, must not be misleading, cause pilot confusion or increase workload. Airplane attitudes or crosswind conditions may cause certain symbols (e.g., the zero-pitch line or flight path vector) to reach field-of-view limits such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance, which makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”).

    f. A HUD system used to display EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.

    3. The safety and performance of the pilot tasks associated with the use of the pilot compartment view must not be degraded by the display of the EFVS image. Pilot tasks that must not be degraded by the EFVS image include:

    a. Detection, accurate identification, and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.

    b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

    4. Use of EFVS for instrument approach operations must be in accordance with the provisions of § 91.175(l) and (m), and § 121.651, where applicable. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the EFVS for functions that have not been found to be acceptable.

    Issued in Renton, Washington, on July 27, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18445 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-7851; Special Conditions No. 25-625-SC] Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Installation of an Airbag System To Limit the Axial Rotation of the Upper Leg on Single-Place Side-Facing Seats AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Boeing Model 747-8 airplane. This airplane, as modified by Associated Air Center, will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is an airbag system to limit axial rotation of the upper leg, due to leg flail, of occupants in single-place side-facing seats. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Associated Air Center on August 3, 2016. We must receive your comments by September 19, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-7851 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2194; facsimile 425-227-1320.

    SUPPLEMENTARY INFORMATION:

    The substance of these special conditions has been subject to the public comment process with no comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On February 15, 2014, Associated Air Center applied for a supplemental type certificate for inflatable airbag systems in the Boeing Model 747-8 airplane. This airplane, currently approved under type certificate no. A20WE, is a private, not-for-hire, not-for-common-carriage business jet with a head-of-state interior. This airplane has a maximum passenger seating capacity of 113. Twelve of the passenger-seating positions include single-place side-facing seats, each of which include an airbag system to protect against leg-flail injuries.

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Associated Air Center must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 747-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The Boeing Model 747-8 airplane, as modified by Associated Air Center, will incorporate the following novel or unusual design features: An airbag system to limit axial rotation of the upper leg, due to leg flail, of occupants in single-place side-facing seats.

    Discussion

    The Boeing Model 747-8 airplane has an interior configuration that includes single-place side-facing seats. These seats include an airbag system in the shoulder belt, per Special Conditions no. 25-606-SC; and an airbag system to limit the axial rotation of the upper leg (femur).

    Side-facing seats are considered a novel design for transport-category airplanes that include title 14, Code of Federal Regulations (14 CFR) part 25, Amendment 25-64, in their certification bases and were not anticipated when those airworthiness standards were issued. Therefore, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. The FAA issued Special Conditions no. 25-606-SC to address the certification of single- and multiple-place side facing seats for Boeing 747-8 airplanes. Those special conditions include condition 2(e), which requires the axial rotation of the upper-leg (femur) to be limited to 35 degrees in either direction from the nominal seat position. Associated Air Center has developed an airbag system that will be installed close to the floor and that is designed to limit the axial rotation of the upper-leg.

    Serious leg injuries, such as femur fracture, can occur in aviation side-facing seats, injuries that could threaten the occupant's life directly or eliminate the occupant's ability to evacuate the airplane. Limiting upper-leg axial rotation to a conservative limit of 35 degrees (approximately the 50-percentile range of motion) should also limit the risk of serious leg injury. Research suggests that the angle of rotation can be determined by observing lower-leg flailing in typical high-speed video of the dynamic tests. Alternately, the anthropomorphic test dummy could be instrumented to directly measure upper-leg axial rotation. This requirement complies with the intent of the § 25.562(a) injury criteria in preventing serious leg injury.

    To comply with special condition 2(e) on some seat positions, Associated Air Center proposes to install leg-flail airbags. This airbag is not addressed in Special Conditions no. 25-606-SC. Therefore, the FAA must issue new special conditions to address this leg-flail airbag installation. These special conditions are similar to other special conditions previously issued for airbags.

    Special Conditions no. 25-606-SC for the airbag system in the shoulder belt are based on previous special conditions for airbag systems on forward-facing seat lap belts with some changes to address the specific issues of side-facing seats.

    These special conditions for the leg-flail airbag contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane as modified by Associated Air Center. Should Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

    The substance of these special conditions previously has been subjected to the notice and comment period and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes modified by Associated Air Center.

    In addition to the requirements of §§ 25.562 and 25.785, and Special Conditions no. 25-606-SC, the following special conditions are part of the type certification basis for Boeing 747-8 airplanes with leg-flail airbag systems installed on side-facing seats.

    1. For seats with leg-flail airbag systems, these systems must deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th-percentile male. At some buttock popliteal length and effective seat-bottom depth, the lower legs will not be able to form a 90-degree angle with the upper leg; at this point, the lower-leg flail would not occur. The leg-flail airbag system must provide a consistent approach to prevention of leg flail throughout that range of occupants whose lower legs can form a 90-degree angle relative to the upper legs when seated upright in the seat. Items that need to be considered include, but are not limited to, the range of occupants' popliteal height, the range of occupants' buttock popliteal length, the design of the seat effective height above the floor, and the effective depth of the seat bottom cushion.

    2. The leg-flail airbag system must not be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), and other operating and environmental conditions (vibrations, moisture, etc.) likely to occur in service.

    3. Deployment of the leg-flail airbag system must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress.

    4. Inadvertent deployment of the leg-flail airbag system, during the most critical part of the flight, must either meet the requirement of § 25.1309(b), or not cause a hazard to the airplane or its occupants. This also includes preventing inadvertent airbag deployment from a static discharge.

    5. The leg-flail airbag system must not impede rapid egress of occupants from the airplane 10 seconds after airbag deployment.

    6. The leg-flail airbag system must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lightning (§ 25.1316) and HIRF (§ 25.1317) are incorporated by reference for the purpose of measuring lightning and HIRF protection.

    7. The leg-flail airbag system must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the leg-flail airbag system does not have to be considered.

    8. The leg-flail airbag system must not release hazardous quantities of gas, sharp injurious metal fragments, or particulate matter into the cabin.

    9. The leg-flail airbag system installation must be protected from the effects of fire such that no hazard to occupants will result.

    10. A means must be available to verify the integrity of the leg-flail airbag system's activation system prior to each flight, or the leg-flail airbag system's activation system must reliably operate between inspection intervals. The FAA considers that the loss of the leg-flail airbag system's deployment function alone (i.e., independent of the conditional event that requires the leg-flail airbag system's deployment) is a major-failure condition.

    11. The airbag inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).

    12. The leg-flail airbag system, once deployed, must not adversely affect the emergency-lighting system (i.e., block floor-proximity lights to the extent that the lights no longer meet their intended function).

    Issued in Renton, Washington, on July 26, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18398 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3983; Directorate Identifier 2015-NM-009-AD; Amendment 39-18582; AD 2016-14-01] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; correction.

    SUMMARY:

    The FAA is correcting an airworthiness directive (AD) that published in the Federal Register. That AD applies to certain Airbus Model A330-200 Freighter series airplanes; Model A330-200 and A330-300 series airplanes; Model A340-200 and A340-300 series airplanes; Model A340-500 series airplanes; and Model A340-600 series airplanes. Table 1 to paragraph (j) of the regulatory text contains typographical errors regarding certain part numbers (P/Ns). This document corrects those errors. In all other respects, the original document remains the same.

    DATES:

    This final rule is effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016 (81 FR 44983, July 12, 2016).

    ADDRESSES:

    For Airbus service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email airworthiness.A[email protected]; Internet http://www.airbus.com.

    For Hamilton Sundstrand service information identified in this final rule, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email [email protected]; Internet http://www.hamiltonsundstrand.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-2016-3983.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Airworthiness Directive 2016-14-01, Amendment 39-18582 (81 FR 44983, July 12, 2016) (“AD 2016-14-01”), currently requires identification of the manufacturer, part number, and serial number of the ram air turbine (RAT), and re-identification and modification of the RAT if necessary, for certain Airbus Model A330-200 Freighter series airplanes; Model A330-200 and A330-300 series airplanes; Model A340-200 and A340-300 series airplanes; Model A340-500 series airplanes; and Model A340-600 series airplanes.

    Need for the Correction

    As published, table 1 to paragraph (j) of the regulatory text contains typographical errors in two part numbers. Table 1 to paragraph (j) of the AD incorrectly refers to RAT P/Ns 1720934C and 1720934D. Those part numbers should have been 1702934C and 1702934D.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information, which describes procedures for identifying the supplier, part number, and serial number of the installed RAT actuator; modifying the RAT; and re-identifying the RAT actuator and RAT.

    • Service Bulletin A330-29-3126, dated June 12, 2014.

    • Service Bulletin A340-29-4097, dated June 12, 2014.

    • Service Bulletin A340-29-5025, dated June 16, 2014.

    Hamilton Sundstrand has issued Service Bulletins ERPS06M-29-21, Revision 1, dated April 14, 2015; and ERPS33T-29-7, dated June 6, 2014. This service information describes procedures for identifying the affected RAT actuator and RAT part numbers and serial numbers, modifying affected actuators, and re-identifying affected RAT actuators and RATs.

    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.

    Correction of Publication

    This document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the Federal Register.

    The effective date of this AD remains August 16, 2016.

    Since this action only corrects typographical errors, it has no adverse economic impact and imposes no additional burden on any person. Therefore, we have determined that notice and public procedures are unnecessary.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Correction

    Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (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 [Corrected]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-14-01 Airbus: Amendment 39-18582; Docket No. FAA-2016-3983; Directorate Identifier 2015-NM-009-AD. (a) Effective Date

    This AD becomes effective on August 16, 2016.

    (b) Affected ADs

    This AD affects the ADs specified in paragraphs (b)(1), (b)(2), and (b)(3) of this AD.

    (1) AD 2012-21-19, Amendment 39-17235 (77 FR 65812, October 31, 2012) (“AD 2012-21-19”).

    (2) AD 2012-21-20, Amendment 39-17236 (77 FR 65799, October 31, 2012) (“AD 2012-21-20”).

    (3) AD 2016-04-01, Amendment 39-18395 (81 FR 8134, February 18, 2016) (“AD 2016-04-01”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(7) of this AD, certificated in any category.

    (1) Airbus Model A330-223F and -243F airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (2) Airbus Model A330-201, -202, -203, -223, and -243 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (3) Airbus Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (4) Airbus Model A340-211, -212, and -213, airplanes, all manufacturer serial numbers.

    (5) Airbus Model A340-311, -312, and -313 airplanes, all manufacturer serial numbers.

    (6) Airbus Model A340-541 airplanes, all manufacturer serial numbers.

    (7) Airbus Model A340-642 airplanes, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 29, Hydraulic Power.

    (e) Reason

    This AD was prompted by a report indicating that, during an operational test of a ram air turbine (RAT), the RAT did not deploy in automatic mode. We are issuing this AD to prevent non-deployment of the RAT, which, if preceded by a total engine flame-out, or during a total loss of normal electrical power generation, could result in reduced control of the airplane.

    (f) Compliance

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

    (g) Identification and Replacement for Certain Airbus Model A330, and A340-200 and -300 Airplanes

    For Airbus Model A330-200 Freighter series airplanes, Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes: Within 30 months after the effective date of this AD, identify the supplier, part number, and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (1) If the supplier identified is Arkwin Industries, and the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (2) If the supplier identified is Arkwin Industries, and the identified actuator RAT part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (3) If the supplier identified is Arkwin Industries, and the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (h) Identification and Replacement for Certain Airbus Model A340-500 and -600 Airplanes

    For Airbus Model A340-500 and -600 airplanes: Within 30 months after the effective date of this AD, identify the part number and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (1) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (2) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (3) If the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (i) Terminating Action for Certain Requirements of Other ADs

    (1) For Airbus Model A330-200 Freighter, A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: Accomplishment of the actions required by paragraph (g)(1), (g)(2), or (g)(3) of this AD constitutes compliance with the requirements of paragraph (g)(1) of AD 2012-21-19, paragraph (g) of AD 2012-21-20, and paragraphs (g), (h), and (i) of AD 2016-04-01, for that airplane only.

    (2) For Airbus Model A340-500 and -600 series airplanes: Accomplishment of the actions required by paragraphs (h)(1), (h)(2), and (h)(3) of this AD constitutes compliance with the requirements of paragraphs (h)(1) and (h)(2) of AD 2012-21-20, and paragraph (j) of 2016-04-01, for that airplane only.

    (j) Parts Installation Limitations

    As of the effective date of this AD, no person may install any RAT actuator or any RAT having a part number identified in table 1 to paragraph (j) of this AD on any airplane, unless it meets the conditions specified in paragraph (j)(1) or (j)(2) of this AD, as applicable.

    Table 1 to Paragraph (j) of This AD—Affected Part Numbers Affected Airbus airplane models RAT part No. RAT actuator
  • part No.
  • Model A330-200 and -300 series airplanes 1702934C, 1702934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A330-200 Freighter series airplanes 1702934C, 1702934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A340-200 and -300 series airplanes 1702934C, 1702934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A340-500 and -600 series airplanes 772722H, 772722J, 772722L 5912536, 5915769

    (1) For Airbus Model A330-200 Freighter series airplanes; Model A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: The RAT actuator or RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014.

    (2) For Airbus Model A340-500 and -600 series airplanes: The RAT actuator or the RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (k) Credit for Previous Actions

    (1) This paragraph provides credit for the RAT and RAT actuator identification specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD if that identification was performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for the RAT or RAT actuator identification and modification specified in paragraph (j)(1) of this AD, if those actions were performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (3) Required for Compliance (RC): If any Airbus service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified 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 procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0008, dated January 15, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3983.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(4) and (n)(5) of this AD.

    (n) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (3) The following service information was approved for IBR on August 16, 2016 (81 FR 44983, July 12, 2016).

    (i) Airbus Service Bulletin A330-29-3126, dated June 12, 2014.

    (ii) Airbus Service Bulletin A340-29-4097, dated June 12, 2014.

    (iii) Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (iv) Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015.

    (v) Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014.

    (4) For Airbus service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

    (5) For Hamilton Sundstrand service information identified in this AD, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email [email protected]; Internet http://www.hamiltonsundstrand.com.

    (6) 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.

    (7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on July 25, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18174 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 154 [Docket No. RM01-5-000] Electronic Tariff Filings AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Correcting amendment.

    SUMMARY:

    This document contains corrections to the final regulations that became effective November 3, 2008 (with implementation of the requirements beginning April 1, 2010), as published in the subsequent editions of the Code of Federal Regulations, including the 2015 edition.

    DATES:

    Effective date: August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wartchow, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: 202-502-6000.

    SUPPLEMENTARY INFORMATION:

    The Commission amended 18 CFR 154.112(a), addressing the filing of “special rate schedules,” reflecting special operating arrangements previously certificated pursuant to part 157 of the Commission's regulations (such as for the exchange of natural gas).1

    1Electronic Tariff Filings, Order No. 714, FERC Stats. & Regs. ¶ 31,276, 73 FR 57515 (2008) (Order No. 714).

    As published in the 2015 edition of the Code of Federal Regulations, the final regulations (effective November 3, 2008) contained an error. Order No. 714 revised the fourth, fifth and sixth sentences to reflect new filing requirements. However, the published version of 18 CFR 154.112(a) incorrectly retained language from the earlier version that should have been superseded. The Commission did not intend to retain the superseded sentences. This correcting amendment removes the incorrectly-retained language. This correction does not affect 18 CFR 154.112(b) which remains unchanged.

    List of Subjects in 18 CFR Part 154

    Natural gas, Pipelines, Reporting and record-keeping requirements, Natural gas companies, Rate schedules and tariffs.

    Accordingly, 18 CFR part 154 is corrected by making the following correcting amendments:

    PART 154—RATE SCHEDULES AND TARIFFS 1. The authority citation for part 154 continues to read as follows: Authority:

    15 U.S.C. 717-717w; 31 U.S.C. 9701; 42 U.S.C. 7102-7352.

    2. Section 154.112 is corrected by revising paragraph (a) to read as follows:
    § 154.112 Exception to form and composition of tariff.

    (a) The Commission may permit a special rate schedule to be filed in the form of an agreement in the case of a special operating arrangement, previously certificated pursuant to part 157 of this chapter, such as for the exchange of natural gas. The special rate schedule must contain a title page showing the parties to the agreement, the date of the agreement, a brief description of services to be rendered, and the designation: “Rate Schedule X-[number].” Special rate schedules may not contain any supplements. Modifications must be made by inserting revised sheets, sections or the entire document as appropriate. Special rate schedules must be included in a separate volume of the tariff. Each such separate volume must contain a table of contents which is incorporated as a sheet or section in the open access transmission tariff.

    Dated: July 28, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-18360 Filed 8-2-16; 8:45 am] BILLING CODE 6717-01-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Part 404 [Docket No. SSA-2016-0023] RIN 0960-AI03 Extension of Expiration Dates for Four Body System Listings AGENCY:

    Social Security Administration.

    ACTION:

    Final rule.

    SUMMARY:

    We are extending the expiration dates of the following body systems in the Listing of Impairments (listings) in our regulations: Musculoskeletal System, Cardiovascular System, Digestive System, and Skin Disorders. We are making no other revisions to these body systems in this final rule. This extension ensures that we will continue to have the criteria we need to evaluate impairments in the affected body systems at step three of the sequential evaluation processes for initial claims and continuing disability reviews.

    DATES:

    This final rule is effective on August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Cheryl A. Williams, Director, Office of Medical Policy, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1020. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION:

    Background

    We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs.1 20 CFR 404.1520(d), 416.920(d), 416.924(d). The listings are in two parts: Part A has listings criteria for adults and Part B has listings criteria for children. If you are age 18 or over, we apply the listings criteria in part A when we assess your impairment or combination of impairments. If you are under age 18, we first use the criteria in part B of the listings when we assess your impairment(s). If the criteria in part B do not apply, we may use the criteria in part A when those criteria give appropriate consideration to the effects of your impairment(s). 20 CFR 404.1525(b), 416.925(b).

    1 We also use the listings in the sequential evaluation processes we use to determine whether a beneficiary's disability continues. See 20 CFR 404.1594, 416.994, and 416.994a.

    Explanation of Changes

    In this final rule, we are extending the dates on which the listings for the following four body systems will no longer be effective as set out in the following chart:

    Listing Current expiration date Extended expiration date Musculoskeletal System 1.00 and 101.00 January 27, 2017 January 26, 2018. Cardiovascular System 4.00 and 104.00 January 27, 2017 January 26, 2018. Digestive System 5.00 and 105.00 January 27, 2017 January 26, 2018. Skin Disorders 8.00 and 108.00 January 27, 2017 January 26, 2018.

    We continue to revise and update the listings on a regular basis, including those body systems not affected by this final rule.2 We intend to update the four listings affected by this final rule as quickly as possible, but may not be able to publish final rules revising these listings by the current expiration dates. Therefore, we are extending the expiration dates listed above.

    2 Since we last extended the expiration dates of the listings affected by this rule in January 2015 (80 FR 1 (2015)), we have published final rules revising the medical criteria for evaluating growth disorders and weight loss in children (80 FR 19522 (2015)), corrected at 80 FR 48248 (2015)), hematological disorders (80 FR 21159 (2015)), cancer (malignant neoplastic diseases) (80 FR 28821 (2015)), and respiratory disorders (81 FR 37138 (2016)).

    Regulatory Procedures Justification for Final Rule

    We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.

    We have determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which four body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations 3 provide that we may extend, revise, or promulgate the body system listings again. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this regulation as a final rule.

    3 See the first sentence of appendix 1 to subpart P of part 404 of 20 CFR.

    In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes to the listings in these body systems. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in these four body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.

    Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.

    Regulatory Flexibility Act

    We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

    Paperwork Reduction Act

    These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

    (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income) List of Subjects in 20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, Old-age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.

    Carolyn W. Colvin, Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending Appendix 1 to subpart P of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.

    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-) Subpart P—[Amended] 1. The authority citation for subpart P of part 404 continues to read as follows: Authority:

    Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a), (i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    2. Amend Appendix 1 to subpart P of part 404 by revising items 2, 5, 6, and 9 of the introductory text before Part A to read as follows: Appendix 1 to Subpart P of Part 404—Listing of Impairments

    2. Musculoskeletal System (1.00 and 101.00): January 26, 2018.

    5. Cardiovascular System (4.00 and 104.00): January 26, 2018.

    6. Digestive System (5.00 and 105.00): January 26, 2018.

    9. Skin Disorders (8.00 and 108.00): January 26, 2018.

    [FR Doc. 2016-18051 Filed 8-2-16; 8:45 am] BILLING CODE 4191-02-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 56 [EPA-HQ-OAR-2014-0616; FRL-9949-79-OAR] RIN 2060-AS53 Amendments to Regional Consistency Regulations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is promulgating revisions to its Regional Consistency regulations to more clearly address the implications of adverse federal court decisions that result from challenges to locally or regionally applicable actions. Specifically, the EPA is introducing a narrow procedural exception under which an EPA Regional office no longer needs to seek Headquarters concurrence to diverge from national policy in geographic areas covered by such an adverse court decision. The revisions will help to foster overall fairness and predictability regarding the scope and impact of judicial decisions under the Clean Air Act (CAA or Act).

    DATES:

    This final rule is effective on September 2, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0616. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically in http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For further general information on this rulemaking, contact Mr. Greg Nizich, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency (C504-03), Research Triangle Park, NC 27711, by phone at (919) 541-3078, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Regulated entities. The Administrator determined that this action is subject to the provisions of CAA section 307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to “such other actions as the Administrator may determine). These are amendments to existing regulations and could affect your facility if a CAA-related ruling by a federal court affects your operations.

    I. General Information A. Does this action apply to me?

    Entities potentially affected directly by this final rulemaking include the EPA and any state/local/tribal governments implementing delegated EPA programs. Entities potentially affected indirectly by this final rule include owners and operators of sources of air emissions that are subject to CAA regulations.

    B. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this notice will be posted at: https://www.epa.gov/nsr/nsr-regulatory-actions. Upon publication in the Federal Register, only the published version may be considered the final official version of the notice, and will govern in the case of any discrepancies between the Federal Register published version and any other version.

    C. How is this document organized?

    The information presented in this document is organized as follows:

    I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. How is this document organized? II. Background for Final Rulemaking III. Final Revisions to the Regional Consistency Regulations and Response to Significant Comments A. What are the final revisions to the 40 CFR part 56 Regional Consistency regulations? B. What is the basis for the EPA's approach? IV. Environmental Justice Considerations V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review VI. Statutory Authority II. Background for Final Rulemaking

    On August 19, 2015, the EPA proposed revisions to the Regional Consistency regulations. The preamble to the proposal provided a history of the Regional Consistency regulations, as well as a discussion of a recent D.C. Circuit Court decision, National Environmental Development Association's Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014), that led to the EPA's proposed revisions to alter the agency's internal process to address court decisions having local or regional applicability. See 80 FR 50252-54, August 19, 2015. This discussion addressed the basis for the proposed changes and our rationale for why we believe the revisions are necessary. This final rulemaking notice does not repeat that discussion, but refers interested readers to the preamble of the proposed rule for this background.

    The 60-day public comment period for the proposed rule was extended 15 days in response to commenters' requests and closed on November 3, 2015. In Section III of this document, we briefly summarize the revisions and summarize and respond to significant comments.

    III. Final Revisions to the Regional Consistency Regulations and Response to Significant Comments A. What are the final revisions to the 40 CFR part 56 Regional Consistency regulations?

    In this action, we are making three specific revisions to the general consistency policy reflected in the Regional Consistency regulations, 40 CFR part 56, to accommodate the implications of judicial decisions addressing locally or regionally applicable actions. First, we are revising 40 CFR 56.3 to add a provision to acknowledge an exception to the “policy” of uniformity to provide that a decision of a federal court adverse to the EPA that arises from a challenge to locally or regionally applicable actions will not automatically apply uniformly nationwide. This ensures that only decisions of the U.S. Supreme Court and decisions of the United States Court of Appeals for the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action” will apply uniformly to the challenged regulations or action nationwide in all instances.1 Second, we are revising 40 CFR 56.4 to add a provision to clarify that the EPA Headquarters offices' employees will not need to issue mechanisms or revise existing mechanisms developed under 40 CFR 56.4(a) to address federal court decisions adverse to the EPA arising from challenges to “locally or regionally applicable” actions. Lastly, we are revising 40 CFR 56.5(b) to clarify that EPA Regional offices' employees will not need to seek Headquarters office concurrence to diverge from national policy or interpretation if such action is required by a federal court decision adverse to the EPA arising from challenges to locally or regionally applicable actions.2

    1 While a decision of the United States Court of Appeals for the D.C. Circuit in cases involving “nationally applicable” action applies nationwide as a general proposition, the EPA notes that in particular cases there may be questions as to the precise contours of the decision that applies nationwide. For example, there may be questions as to the effect of dicta or other subsidiary analysis in the court's decision, or (typically in non-rulemaking contexts) questions arising out of the limited nature of the agency action under review itself. The EPA believes that specific questions such as these are best addressed on a case-by-case basis, and are not intended to be addressed in this action.

    2 As discussed in Section III.B of this preamble, we are revising in this final rule the proposed revisions to 40 CFR 56.5(b) in response to public comment.

    B. What is the basis for the EPA's approach?

    In the proposed rule, we explain in detail why the revisions are reasonable and consistent with general principles of common law and the CAA. See 80 FR 50254. We summarize those discussions in Sections III.B.1 through 6 of this document.

    1. The Revisions Are Consistent With General Principles of Common Law a. Summary of the EPA's Position

    As explained more fully in the proposed rule, federal courts are courts of limited jurisdiction and only have the authority to hear and decide cases granted to them by Congress. A court of appeals generally hears appeals from the district courts located within its circuit, and the circuit is delineated by the states it contains. As a general matter, while an opinion from one circuit court of appeals may be persuasive precedent, it is not binding on other courts of appeals. See Hart v. Massanari, 266 F.3d 1155, 1172-73 (9th Cir. 2001).

    By revising the regulations in part 56 to fully accommodate intercircuit nonaquiescence, the EPA is acting consistently with the purpose of the federal judicial system by allowing the robust percolation of case law through the circuit courts until such time as U.S. Supreme Court review is appropriate.3 As the U.S. Supreme Court has noted, preventing the government from addressing an issue in more than one forum “would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 154, 160 (1984). In light of this important function, the U.S. Supreme Court has sought to preserve government discretion to relitigate an issue across different circuits. Id. at 163. Thus, though circuit conflict may undermine national uniformity of federal law to some degree for some period of time, it also advances the quality of decisions interpreting the law over time. See generally Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 446 (7th Cir. 1994) (J. Easterbrook, concurring) (agencies and courts balance whether “it is more important that the applicable rule of law be settled” or “that it be settled right”) (internal quotation and citation omitted).

    3 As discussed in the proposed rule preamble, the revisions apply to decisions of the district courts as well as circuit courts. 80 FR 50258. The jurisdiction of district courts is even more limited than that of circuit courts.

    b. Response to Comments (1) Summary of Comments

    Various commenters stated that intercircuit nonaquiescence is inappropriate or bad policy. One commenter stated that the EPA's preference for pursuing intercircuit nonacquiescence to promote judicial resolution is not the appropriate approach. The commenter said that the current Regional Consistency regulations allow for judicial appeals, but also ensure uniformity pending the resolution of conflicting court opinions. The commenter also noted that it is uncertain whether ultimate resolution of circuit splits will ever occur under the proposed revisions. The commenters cited to the EPA's reference to the U.S. Supreme Court's review of EDF v. Duke, 549 U.S. 561, 581 (2007) as evidence that the EPA can do what the D.C. Circuit advised in NEDACAP, which is to request review of an adverse decision and put regulated entities on notice that the EPA disagreed with the lower court's decision.

    A couple of commenters noted that some courts, as well as law review articles and legal commentary, have taken an unfavorable view of the doctrine of intercircuit nonacquiescence. The commenters state that the EPA failed to account for the criticisms in its proposal notice. They also took the position that the doctrine is particularly ill-suited for the CAA and its myriad of regulations.

    Another commenter stated that the EPA's proposal to follow intercircuit nonacquiescence is an attempt to refuse to adjust policies in the face of clear, adverse judicial decisions. The commenter suggested that if the EPA disagrees with a court over a matter of enormous import, then the issue should either be elevated to the U.S. Supreme Court or addressed in rulemaking reviewable by the D.C. Circuit.

    One commenter argued that intercircuit nonacquiescence is not the only path to judicial resolution. Rather, following an adverse decision the EPA could apply a policy change nationwide and allow the various circuits courts to review that new interpretation, while maintaining consistency in the meantime.

    (2) EPA Response

    The EPA disagrees with the commenters; the approach advocated by these commenters would grant every court unlimited nationwide jurisdiction. Rather than being merely persuasive, a decision in one circuit thus would become binding precedent in other circuits; such a result is inconsistent with the court system established by Congress and years of case law. Robust review by a variety of courts, to allow for percolation of an issue before it reaches the U.S. Supreme Court, leads to a more thorough analysis of an issue.

    In response to those commenters who claim the EPA failed to account for arguments against intercircuit nonacquiescence, the EPA disagrees. The fact that the EPA reaches a different conclusion regarding the benefits of intercircuit nonacquiescence does not mean that the EPA has failed to consider all sides of the argument. Moreover, as explained more fully in Section III.B.2 of this document, the EPA's position recognizes the unique aspects of CAA § 307(b) and its specific placement of review of nationally applicable regulations and policies in the D.C. Circuit.

    The EPA has reviewed the case law and law review articles cited by the commenters and notes that some of the commenters appear to confuse the concept of intracircuit nonacquiescence, which involves an agency not following a court decision even within the circuit which issued the decision, and intercircuit nonacquiescence, which involves an agency following a court decision in the circuit that issued the decision, but not in other circuits. Some of the cases and law review articles cited by commenters in support of their arguments against intercircuit nonacquiescence involved intracircuit nonacquiescence. See, e.g., Johnson v. U.S. R.R. Retirement Board, 969 F.2d 1082, 1090 (D.C. Cir. 1992), cert. denied, 507 U.S. 1029 (1993) (involving the intracircuit nonacquiescence of the Retirement Board); Lopez v. Heckler, 713 F.2d 1432, 1434 (9th 1983) (involving intracircuit nonacquiescence of the Secretary of Health and Human Resources); Holden v. Heckler, 584 F. Supp. 463 (NE. Ohio 1984) (involving the Secretary of Health and Human Resources failure to follow Sixth Circuit precedent); Diller & Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law, 881 Yale L.J. 801 (1990) (analyzing intracircuit nonacquiescence); Coen, The Constitutional Case Against Intracircuit Nonacquiescence, 75 Minn. L. Rev. 1339 (1991) (same).4 Upon close reading, many of the materials cited by commenters support the EPA's revisions. For example, the D.C. Circuit stated that:

    4 Most of the majority or concurring opinions cited by commenters in support of their argument against intercircuit nonacquiescence were written before the U.S. Supreme Court decided Mendoza in 1984 and thus did not benefit from the Court's reasoning in that case. See, e.g., in May Dep't Stores Co. v. Williamson, 549 F.2d 1147 (8th Cir. 1977) (concurring opinion cited); Goodman's Furniture Co. v. United States Postal Serv., 561 F.2d 462 (3rd Cir. 1977) (concurring opinion cited). At least one of the cases cited does not appear to involve nonacquiescence whatsoever. Finnegan v. Matthews, 641 F.2d 1340 (9th Cir. 1981).

    [o]rdinarily, of course, the arguments against intercircuit nonacquiescence (which occurs when an agency refuses to apply the decision of one circuit to claims that will be reviewed by another circuit) are much less compelling than the arguments against intracircuit nonacquiescence. Although the decision of one circuit deserves respect, we have recognized that “it need not be taken by the Board as the law of the land.” Givens v. United States R.R. Retirement Bd., 720 F.2d 196, 200 (D.C. Cir. 1983). When the Board's position is rejected in one circuit, after all, it should have a reasonable opportunity to persuade other circuits to reach a contrary conclusion. And there is an additional value to letting important legal issues “percolate” throughout the judicial system, so the Supreme Court can have the benefit of different circuit court opinions on the same subject. See, e.g., United States v. Mendoza, 464 U.S. 154, 160, 78 L. Ed. 2d 379, 104 S. Ct. 568 (1984). Johnson, 969 F.2d at 1093. And two legal scholars cited by commenters recognize that: [t]he judicial branch is structured to ensure uniformity and stability of legal standards within each regional circuit while permitting disuniformity among the circuits . . . . As long as parties can discern which circuit law applies to any given conduct, the parties can shape their action to conform to legal standards. Furthermore, permitting circuits to independently examine issues contributes to resolution of important legal questions on a national basis. Accordingly, each circuit remains completely free to accept or reject the reasoning of other courts of appeals. This mixture of uniformity and diversity strikes a balance that permits legal issues to receive independent examination by a number of courts, while at the same time maintaining a unitary rule of law in any given geographic location. Diller & Morawetz, infra, 881 Yale L.J. at 805 (citations omitted). See also, Coen, infra, 775 Minn. L. Rev. at fn. 23 (“The legality of intercircuit nonacquiescence is widely accepted.”). Notably, these revisions accommodate intercircuit nonacquiescence while rejecting intracircuit nonacquiescence by providing that an EPA Regional office impacted by an adverse court decision should follow that decision, even if that results in an EPA Regional office acting contrary to otherwise applicable national policy.

    While some commenters stated that intercircuit nonacquiescence is particularly ill-fitted to the CAA because of its myriad of regulations, the EPA concludes that it is the vast array of regulations which makes these revisions appropriate. A facility may already have to track compliance with a variety of CAA regulations, and the revisions allow that facility to presume that the national interpretation or policy applicable to those regulations will continue to apply to it, unless a court with jurisdiction over the facility issues a court decision or the EPA undertakes appropriate procedures to change that national interpretation or policy. It arguably would be more burdensome on regulated entities to track not only the national interpretation of all the regulations and policies that apply to their facilities, but also all the court decisions across the country regarding those regulations or policies. These revisions to the Regional Consistency rule are intended to provide, as much as possible, a stable policy environment for facilities.

    The approach suggested by one commenter that the EPA could provide uniformity by applying an adverse court decision nationally, without otherwise changing the underlying national policy or interpretation, is not feasible when different circuits issue different interpretations. When circuit splits occur, the EPA would have to apply different interpretations in the conflicting circuits; the only question is which interpretation applies in those circuits that had not ruled on the issue. The final revisions to the Regional Consistency regulations answer this question by establishing the presumption that the EPA will continue to apply the national policy nationwide, except for those geographic areas impacted by the adverse decision. However, the approaches set forth by commenters fail to address the situation when a second court addresses an issue already ruled on by another court, and issues a conflicting decision. The EPA's final revisions account for this possibility by maintaining national policies nationwide, except in those limited geographic areas covered by adverse court decisions. A particular advantage of these revisions is that they can be implemented in a predictable and straightforward manner regardless of the number of lower court decisions or the potential conflicts among those decisions.

    To the extent commenters are concerned that circuit splits would never be resolved by the U.S. Supreme Court, this possibility is not caused by, or unique to, the revised Regional Consistency regulations. First, as noted in the proposed rule, the U.S. Supreme Court is more likely to grant review if such a split between two or more circuits occurs. 80 FR 50255. Second, when the EPA successfully maintains its position before a court, the entity challenging that position may seek further review. Finally, the public will still have the option to file a petition with the EPA requesting a change in the nationally applicable regulations or policy in the event that EPA declines to change national policy in response to an adverse ruling in a lower court. Assuming statutory timing and other jurisdictional prerequisites are met, the EPA's final response to that petition may be challenged in the D.C. Circuit, which is, under the CAA, the appropriate venue for obtaining a nationally applicable court decision on the national policy. See, e.g., Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975).

    We disagree with the commenter who stated that the revisions are an attempt by the EPA to ignore adverse decisions.5 Quite the contrary, the final revisions clearly establish a mechanism whereby the EPA Regions located in the geographic area(s) covered by an adverse decision may and should begin following that decision in those geographic areas immediately, without having to seek concurrence from Headquarters. The revisions also recognize that the EPA may, as appropriate, change national policy in response to an adverse decision. But until the EPA undertakes the appropriate process to effectuate that change, national policy continues to apply elsewhere nationwide.

    5 The Duke case is more complicated than the commenters acknowledge, and is not a clean example of how the EPA can merely seek U.S. Supreme Court review of an adverse decision. In fact, the EPA did not ask the U.S. Supreme Court to review the Fourth Circuit's decision in Duke. Rather, the EPA objected to the petition for certiorari submitted by environmental petitioners, on the grounds that the petitioners had not identified either a square circuit court split, or a sufficient reason for U.S. Supreme Court review. See Brief of the United States in Opposition (05-548). Only once the U.S. Supreme Court granted review, did the EPA successfully argue to the Court that the Fourth Circuit's decision was in error.

    2. The Revisions Are Consistent With the CAA Judicial Review Provisions a. Summary of the EPA's Position

    Revisions ensure that the Regional Consistency regulations are in harmony with the CAA's judicial review provisions at section 307(b). The ability of the various courts of appeals to hear appeals of decisions of the EPA is specifically addressed in the statute. In 1977, at the same time it added the directive for the EPA to promulgate what would ultimately become the Regional Consistency regulations, Congress amended the Act to ensure that the D.C. Circuit Court, and no other circuit courts, would review nationally applicable regulations. By placing review of nationally applicable decisions in the D.C. Circuit Court alone, Congress struck the balance between the countervailing values of improved development of the law on the one hand and national uniformity on the other. At the same time, Congress left the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable final actions to the regionally-based courts of appeal. These revisions maintain the balance that Congress struck in CAA section 307(b)(1). There is nothing in the language or intent of CAA § 301(a)(2) that trumps the clear statutory directive of CAA § 307(b)(1) establishing which courts have jurisdiction over which final agency actions.

    b. Response to Comments (1) Summary of Comments

    A few commenters suggested that if the EPA is concerned about local court decisions impacting national policy, the EPA should have those cases transferred to the D.C. Circuit for decision. The commenters stated that CAA § 307(b)(1) requires final actions “of nationwide scope or effect” be heard by the D.C. Circuit. The commenters contended that this provision, in combination with the existing Regional Consistency regulations, is enough to ensure fairness and uniformity in the application of policies nationwide.

    One commenter stated that intercircuit nonacquiescence is in conflict with CAA § 307(b)(1), through which Congress tried to prevent the very intercircuit conflicts that the proposed revisions will allow. The commenter noted that if locally and regionally applicable actions with nationwide scope and effect are properly heard by the D.C. Circuit, there should be relatively few situations where a circuit court addresses an issue that can create inconsistency in the interpretation or implementation of CAA requirements. Another commenter contended that CAA § 307(b) does not stand for the proposition that the EPA can ignore decisions of non-D.C. Circuit courts simply because they arose in the context of a permitting decision. In fact, they maintain, CAA § 301 stands for the opposite proposition.

    (2) EPA Response

    The EPA agrees that CAA § 307(b)(1) requires final actions “of nationwide scope or effect” be heard by the D.C. Circuit. This may include regional rulemaking that the EPA has identified and designated as having national scope and effect. However, when the EPA is applying regulations of nationwide scope to a particular circumstance, another appropriate circuit court should hear that decision of local or regional impact.

    We agree with commenters that if the D.C. Circuit were the only court to rule on the reasonableness of the EPA's interpretation of its national regulations, there would be very little need for intercircuit nonacquiescence because the only action being reviewed by the court would be the EPA's application of that interpretation to the facts of the case. However, sometimes a court other than the D.C. Circuit (or U.S. Supreme Court) renders an adverse decision that rejects the EPA's interpretation of nationally applicable regulations in a manner that could be argued to have general rather than merely case-specific implications. This can happen, for example, where the court does not merely find that the facts do not support the EPA's application of national policy, but instead finds fault with the national policy itself. The Sixth Circuit decision in Summit Petroleum Corp. v. U.S. EPA, 690 F3d 733 (6th Cir. 2012) is the quintessential example of a final action of local or regional application; in the context of reviewing that local action, the Sixth Circuit rejected the EPA's longstanding interpretation of the applicable national regulations. Revisions to the Regional Consistency regulations will minimize, not exacerbate, the disruption to the smooth implementation of the CAA caused by locally or regionally applicable circuit court decisions by limiting their applicability to those areas covered by the circuit court, and leaving national policy in place in the rest of the country. Parties that agree with the decision of the regional circuit and believe it should be followed nationally are, of course, free to advocate that position to the EPA (and, if necessary, reviewing courts) in specific cases arising in other circuits. Revisions merely make clear that EPA will not automatically be bound to follow locally or regionally applicable circuit court decisions in cases arising in other circuits.

    It would be contrary to the division of responsibility among the circuit courts that Congress established in CAA § 307(b) for the EPA to eliminate their review by moving any case that could potentially affect national policy to the D.C. Circuit. Such an approach also would disrupt the timeline for review created by the CAA. Challenges to nationally applicable regulations must be filed within 60 days of the regulations being published in the Federal Register. Treating any challenge to each and every application of those regulations as challenges to the underlying regulations that must be heard by the D.C. Circuit would either render those challenges untimely (to the extent they occur outside the 60-day window) and thus require their dismissal, or render the 60-day window superfluous by allowing challenges to the regulations any time they are applied. See, e.g., Sierra Club de Puerto Rico, et al. v. EPA, 815 F.3d 22 (D.C. Cir. 2016) (dismissing a challenge to a 1980 regulation as untimely because the purported after-arising ground involved the mere application of that old regulation). Neither result is consistent with the judicial review provisions established in CAA § 307(d). In fact, given the clear language of § 307(b), it is not clear whether a court would transfer a challenge to a decision of local or regional nature to the D.C. Circuit. See, e.g., Dalton Trucking, Inc. v. United States EPA, 808 F.3d 875 (D.C. Cir. 2015) (finding that the D.C. Circuit was not the proper court to hear a challenge to a preemption waiver for California because the waiver decision did not have national applicability, nor did the EPA make or publish a finding that the decision was based on a determination of nationwide scope or effect). Finally, sometimes adverse decisions arise in the context of enforcement cases, which must be heard in particular district courts, and then any appeal must be heard by the circuit court with jurisdiction over that district court. Thus, the EPA simply cannot ensure that all court decisions potentially involving review of national policy are heard in the D.C. Circuit.

    Finally, the EPA is not ignoring decisions of other circuits by revising the Regional Consistency regulations. Rather, these revisions help to ensure that we are clearly following the applicable law of the circuit in the geographic areas covered by the decision. But the EPA also is respecting the judicial review provisions of the CAA by limiting decisions reviewing locally or regionally applicable actions to those locations and regions covered by the circuit court.

    3. The Revisions Are Consistent With CAA Section 301 a. Summary of the EPA's Position

    The revisions also are consistent with CAA § 301. As described in the proposed rule, § 301(a)(2) requires the EPA Administrator to develop regulations to “assure fairness and uniformity” of agency actions. Notably, there is nothing in the text of CAA § 301(a)(2) or its limited legislative history that suggests Congress intended to either upset the balance Congress struck when establishing judicial review provisions in CAA § 307, or disrupt the general principles of common law that have allowed for the percolation of issues up through the various circuit courts, as discussed previously. Section 301(a)(2) of the Act does not specifically address how the agency should respond to adverse court decisions.

    In addition, the text of CAA § 301(a)(2)(A) necessitates a balance between uniformity and fairness; however, promoting either one of these attributes does not always guarantee maximizing the other attribute in all circumstances. These revisions would ensure the EPA has the flexibility to maintain that balance, as appropriate.

    b. Response to Comments (1) Summary of Comments

    Several commenters maintained that the EPA's proposed amendments to the Regional Consistency regulations are inconsistent with the clear and unambiguous language of CAA § 301(a)(2). The commenters stated that this provision requires the EPA to promulgate rules establishing “general applicable procedures and policies for Regional officers and employees . . . to follow” that are designed to “assure fairness and uniformity in the criteria, procedures, and policies” applied by the EPA Regional offices. The commenters contended that the EPA's proposed rule codifies an impermissible exception to uniformity in the form of intercircuit nonacquiescence.

    A few commenters pointed to the legislative history associated with the passage of CAA § 301(a)(2) and noted that Congress clearly intended there to be national consistency in implementing core CAA programs. One commenter noted that Congress's directive in CAA § 301 was particularly critical in the prevention of significant deterioration (PSD) and new source review (NSR) permitting programs, as well as other national standards (e.g., New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants).

    A few commenters also stated that even if CAA § 301 were ambiguous, the EPA's proposed amendments to the Regional Consistency regulations are unreasonable. The commenters noted that the D.C. Circuit vacated the EPA's Summit memorandum based on the language in the EPA regulations, which essentially is exactly the same as the statutory language and mandate requiring fairness and uniformity. Thus, the commenters concluded, the court has already found that the statutory language establishes a national uniformity mandate. One commenter additionally noted that the fact that court decisions are not expressly addressed by CAA § 301(a)(2) does not create ambiguity; the statute requires the EPA to maintain consistency.

    Two commenters noted that the D.C. Circuit has recognized the call for uniformity as well in Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C. Cir. 1982). One commenter stated that the EPA's reliance on Air Pollution Control Dist. v. EPA, 739 F.2d 1071 (6th Cir. 1984) in the proposal is misplaced because the case involved a different issue. The commenter maintained that the case does not support the EPA in ignoring the plain language of CAA § 301(a)(2) to promote “fairness and uniformity.” The commenter noted that the court in Air Pollution Control Dist. expressed a “strong preference to achieve an interpretation of the Act which is consistent among the several circuits.” Id. at 1094.

    One commenter stated that the EPA's proposal is inconsistent with CAA § 301(a)(1), which provides that the Administrator may delegate authority when it is “necessary or expedient.” The commenter stated that if the Administrator delegates her authority to Regional Administrators who make inconsistent decisions, the delegation would not be expedient and therefore would violate CAA § 301(a)(1). The commenter further maintained that the EPA incorrectly stated in the proposal notice that the current Regional Consistency regulations that require regional officials to “seek concurrence” from Headquarters could result in inconsistent policies among Regional offices. Proposal at 50258. According to this commenter, this existing mechanism ensures consistency and does not condone variation between Regional offices.

    Two commenters argued that the EPA's proposal to incorporate intercircuit nonacquiescence into the Regional Consistency regulations creates “irrationality” in the rulemaking process. The commenters argue that by allowing her delegatees (e.g., Regional Administrators) to act in an inconsistent manner is tantamount to the Administrator acting inconsistently, which is impermissible.

    (2) EPA Response

    The EPA disagrees with the commenters who state that the revision to the Regional Consistency regulations is inconsistent with CAA § 301(a)(2). On its face, CAA § 301(a)(2) does not impose a standalone requirement to attain uniformity. While CAA § 301(a)(2)(C) directs the EPA to create mechanisms for identifying and standardizing various criteria, there is nothing to suggest that such standardization requires exact duplication by all EPA Regions in all circumstances, including Regional office responses to court decisions.

    As noted earlier, CAA § 301(a)(2) does not specifically discuss whether the fairness and uniformity objectives must be applied to all court decisions. Instead, the provision requires the EPA to establish procedures that apply to its Regional office officials and employees, but it does not address whether or how the EPA should address judicial decisions in those procedures. Congress also did not include language that would expressly prohibit the EPA from promulgating regulations that accommodate intercircuit nonacquiescence. To the extent that Congress prioritized judicially-created uniformity, this was expressed in CAA § 307(b)(1)—which allows for regional divergence among circuit courts—not in CAA § 301(a)(2)(A).

    The EPA disagrees with commenters who claim that the amendments to the Regional Consistency regulations violate CAA § 301(a)(1). This provision provides authority to the Administrator to delegate her powers and duties to any EPA officer or employee as “[s]he may deem necessary or expedient.” This delegation is “expedient” if it is “suitable for achieving a particular end in a given circumstance” or “characterized by concern with what is opportune.” Expedient, Merriam-Webster Dictionary (2015). Given the immense quantity and breadth of tasks assigned to the Administrator through the CAA and other statutes the EPA is charged with administering, delegation of the Administrator's authorities is both necessary and expedient in many circumstances to efficiently protect the environment and public health. Further, in amending the Regional Consistency regulations, the EPA is introducing only a narrow procedural exception to deal with federal court decisions adverse to EPA regarding locally or regionally applicable actions that may affect consistent application of national programs, policy, and guidance. The EPA does not agree that it is “irrational” for the agency to act differently in different regional actions when that difference is necessitated by an adverse local or regional court decision, whether the action is taken by the EPA Regional Administrators or by the Administrator herself.

    As commenters admit, in NEDACAP, the D.C. Circuit explicitly did not address whether the CAA allows the EPA to adopt different standards in different circuits. NEDACAP at 1011. While the NEDACAP decision relied heavily on the general policy statements contained in 40 CFR 56.3 of the existing regulations—which broadly endorse the fair and uniform application of criteria, policy, and procedures by EPA Regional office employees—nothing in those general statements or any other provisions of the regulations mandates that the EPA adopt nationwide the interpretation of the court that first addresses a legal matter. The lack of such a mandate supports the focused revisions in this rulemaking that are a natural extension of the agency's existing regulations.

    As commenters noted, the D.C. Circuit cited to CAA § 301(a)(2) in Kennecott. 684 at 1014, fn. 18. However, this statutory provision was not central to the case, so the court's mention of the provision was dicta. The D.C. Circuit described the EPA's ability to prescribe in advance criteria that states must use in making a specific type of determination. The EPA's ability to require states to follow certain rules is not in question in this rulemaking. The court also stated that establishing criteria to implement a particular CAA program “on an ad hoc incremental basis” would not amount to “fairness and uniformity” described in CAA § 301(a)(2). The EPA is not attempting to create ad hoc rules on how to implement programs. Rather, in taking this final action, the EPA is creating a clear and uniform presumptive approach and standard agency process to follow in light of adverse local and regional court decisions. This is the opposite of an ad hoc approach.

    As the EPA noted in the proposal notice, Air Pollution Control Dist. rejected the claim that CAA § 301(a)(2) establishes a substantive standard that requires similar or uniform emission limitations for all sources. 739 F.2d 1071, 1085 (6th Cir. 1984). Although that case addressed a different issue than the content of this rulemaking, specifically whether CAA § 301(a)(2) required the EPA to implement similar or uniform emission limitations for each source within a particular area, the decision does support the overall concept that CAA § 301(a)(2) does not impose a standalone requirement to attain uniformity.

    Further, the EPA believes that the quote used by the petitioner in that case from page 1094 of the decision has been taken out of context. The court made a certain substantive ruling in Air Pollution Control District on an issue unrelated to this rulemaking. In making that decision, the court was seeking to keep its decision consistent with those of other circuit courts. A court's decision to make a holding consistent with other courts' prior decisions or to create a circuit split is outside the purview of this rulemaking and this agency. It may be a factor that weighs into how a court comes to a decision, but does not speak to how the agency should treat national policy in light of an adverse court decision with regional or local applicability, nor does it speak to the issue of whether it is appropriate for the EPA to create a narrow exception to the procedure established in the Regional Consistency regulations for adverse local and regional court decisions.

    There is nothing in the limited legislative history of CAA § 301(a)(2) that counsels against the revision the EPA is making through this final action. The legislative history quoted by the commenter discusses one particular instance of regional inconsistency that, at least in part, motivated Congress to implement the regional consistency language of CAA § 301(a). This situation, which involved the use of different air quality models in different regions for the purpose of implementing the PSD permitting program, is far removed from the case of an adverse court decision of local or regional scope. Further, the legislative history surrounding passage of CAA § 307(b) indicates that Congress intended to advance the objective of even and consistent national application of certain EPA regulations that are national in scope. At the same time, Congress left the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable “final actions” to the regionally-based courts of appeals. The EPA has found, and commenters have pointed to, nothing in the legislative history to suggest that at the same time, Congress intended for the Regional Consistency provisions to somehow upset this careful balance and require the EPA to apply a locally or regionally applicable decision in all EPA Regions in order to maintain consistency.

    The revisions further the overall goal of consistency and clarity by specifically identifying the possibility of potential differing actions across the EPA Regions, especially where multiple courts have already addressed an issue in different ways, and standardizing a response that can be followed by all the EPA Regions, such that the EPA Regions only have to apply local and regional decisions issued by courts in those geographic areas over which the court has jurisdiction.

    No commenter has explained in any detail why the NSR, NSPS or NESHAP programs are uniquely situated such that it would be inappropriate to finalize the narrow exception to the Regional Consistency regulations to deal with locally or regionally applicable federal court decisions. While some programs (such as NSR and NSPS) create national standards and others are administered through EPA-approved state implementation plans (SIPs), all portions of the CAA are federal law and apply nationwide. The explanation for the revisions provided in the proposal and final rule preambles apply equally to all criteria, procedures, and policies, and the commenter has failed to provide a reasoned explanation why certain programs should be considered differently. The EPA also notes that it is at times impossible to maintain complete consistency in the face of adverse court decisions. By revising the regulations, the EPA accommodates the possibility that a split in the circuits could preclude the EPA from complying with both court decisions at once, as illustrated by the following example outlined in the proposal notice. In a case involving a permit issued in New York, the Second Circuit upholds the EPA's longstanding position and, in doing so, confirms that the EPA's interpretation is compelled by the Act under Step One of Chevron. As a result, the EPA continues to apply its longstanding interpretation, consistent with the Second Circuit's decision, in a permit issued in Alabama, an Eleventh Circuit state. In an appeal of that permit, however, the Eleventh Circuit holds that not only is the EPA's interpretation not compelled by the CAA, it is prohibited by the CAA. There are now two court decisions with conflicting Chevron Step One holdings—how could the EPA apply both of those decisions uniformly across the country? While the U.S. Supreme Court could review the issue, it might not. And even if the U.S. Supreme Court eventually resolved the conflict, there could be a multi-year period during which both decisions would remain applicable case law. See, e.g., discussion of Duke in Section 4.b.(2) of this document. This revision acknowledges and addresses those instances in which the EPA may not be able to comply with two, conflicting decisions at the same time.

    4. The Revisions Will Foster Overall Fairness and Predictability a. Summary of the EPA's Position

    Specifically accommodating intercircuit nonacquiescence in the Regional Consistency regulations also fosters fairness and predictability in the implementation of the CAA overall. As discussed earlier, the revisions ensure that national policy continues to apply unless there is an affirmative nationwide and deliberate change in the EPA's rules or policies, or an adverse court decision applies only in those states/areas within the jurisdiction of that court, with the exception of the D.C. Circuit court reviewing final agency actions of national applicability. Under the revised Regional Consistency regulations, a source subject to the CAA needs to know and follow only the law in the circuit where it is located, and the law of the D.C. Circuit Court and the U.S. Supreme Court. It would not be required to follow every CAA case in every court across the country to ensure compliance with the Act. While a source remains free to advocate for a change in the agency's national policy based on the results of a regional circuit court decision, unless and until the agency agrees to make such a change, the national policy will continue to apply except in the circuit where the adverse decision was issued.

    b. Response to Comments (1) Summary of Comments

    A few commenters stated that the EPA's proposal, if finalized, would harm businesses due to different regulatory requirements applying to different facilities based on their location. For example, industry argues it will face uneven application and enforcement of CAA requirements, and incur increased compliance costs as they try to address regulatory ambiguity and confusion. One commenter stated that the proposed revisions would not ensure “fairness” as required in CAA § 301(a)(2). One commenter argued that the proposed revisions will have a chilling effect on new projects or improvements. One commenter noted that limiting the regulatory amendments to local or regional court decisions does not help because many of these decisions actually have nationwide impact.

    One commenter cautioned that finalization of the proposed amendments to the Regional Consistency regulations will lead to increased litigation over venue, since decisions by the D.C. Circuit will apply nationwide, while decisions of district courts and other circuit courts would not be required to apply nationwide. Multiple commenters further noted that the rule change may also lead to additional litigation in multiple circuits to expand the impact of a single regional or local court decision. The commenters believe this will lead to greater burdens on litigants and strains on judicial resources.

    One commenter stated that a lack of national uniformity would create confusion and implementation issues given that the geographic boundaries of the EPA's Regional offices do not match the boundaries of the federal circuit courts and that a single EPA Region may have to apply two different standards based on court decisions and their jurisdictions.

    (2) EPA Response

    The EPA believes in the overall importance of uniformity and fairness in the application of criteria, procedures, and policies across the various EPA regions in most instances. As the EPA explained when the Regional Consistency regulations were first finalized, the “intended effect” of these regulations was “to assure fair and consistent application of rules, regulations and policy throughout the country by assuring that the action of each individual EPA Regional office is consistent with one another and national policy” (45 FR 85400). These revisions merely identify a specific circumstance under which an EPA Regional office no longer needs to seek Headquarters concurrence to diverge from national policy, and confirms that national policy otherwise continues to apply.

    CAA § 301(a)(2) focuses on promoting fairness and uniformity. The EPA believes that predictability is an important element of fairness and also a worthwhile objective to achieve in carrying out its mission. The changes made to the Regional Consistency regulations foster predictability by ensuring that, unless there is an affirmative nationwide and deliberate change in the EPA's rules or policies, lower court decisions would apply only in those areas within the jurisdiction of the lower court, with the exception of the D.C. Circuit Court reviewing final agency actions of national applicability, consistent with CAA § 307(b)(1). The EPA may choose to initiate a change in national policy at any time, including in light of an adverse court decision, but the agency is bound to follow appropriate procedures in order to do so.

    If the revisions to the Regional Consistency regulations had already been in place at the time of the Summit decision, a memorandum from EPA Headquarters like the one challenged in the NEDACAP decision would not have been necessary because EPA Regions, states, and other potentially affected entities would have had certainty and predictability regarding the application of such a judicial decision—they would have known that this type of permit-specific, local and regional decision would only apply in the areas under the jurisdiction of the Sixth Circuit (unless and until the agency expressly decides to make a change to its national policy after consideration of the decision). Accordingly, it would have been clear to everyone that the EPA Regions would not be bound to apply the findings of the Summit decision in states outside the Sixth Circuit, and could continue to apply the longstanding practice that had not been successfully challenged in other federal circuit courts in their regions or decided nationally by the D.C. Circuit or U.S. Supreme Court.

    The EPA acknowledges that under the revisions finalized, some facilities may be subject to different regulatory requirements based on their location. Some difference in governing rules is inherent in our federal judiciary system where district and circuit courts are limited to a definitive jurisdiction. The federal judicial system was designed to allow numerous, and sometimes conflicting, decisions until such time as the U.S. Supreme Court rules on an issue. The structure of the federal judicial system also sometimes results in increased litigation, as issues are considered by multiple courts. As noted previously, this rule simply changes the internal procedure followed by the agency in light of an adverse court decision; thus, these revisions, which are consistent with the federal judicial system, will not singlehandedly lead to increased litigation. One commenter noted that following this rulemaking, litigants may wish to challenge the venue of litigation more often to try to ensure cases are heard by the D.C. Circuit so that judicial outcomes apply nationwide. The EPA believes it is appropriate for venue to be challenged if the litigation is not brought in the appropriate court according to CAA § 307(b)(1). Under the CAA specifically, the drafting of CAA § 307(b) indicates that Congress intended to leave the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable “final actions” to the regionally-based courts of appeals.

    Further, sometimes court decisions reviewing a regulation or statute are reversed on appeal. In other cases, a court decision may contain a ruling that arguably calls into question a national rule in the context of a source-specific action, which is inconsistent with CAA § 307(b)(1), as explained in the proposal notice. When either outcome occurs, intercircuit nonacquiescence allows the EPA to limit the impact of the court's ruling while it undertakes other actions. For example, as outlined in the proposal notice, in Duke, 549 U.S. 561 (2007), the U.S. Supreme Court reversed the Fourth Circuit's implicit invalidation of the EPA's regulations in the context of an enforcement action. In that case, the U.S. Supreme Court found that the court of appeals had been too rigid in its insistence that the EPA interpret the term “modification” in its PSD regulations in the same way that the agency interpreted the term under the NSPS program. Id. at 572-577. While it is true that the U.S. Supreme Court eventually reversed the lower court, there was a 2-year period during which the Fourth Circuit's decision remained in place. Under the commenter's proposed approach, the EPA arguably would have been required to follow that later-reversed Fourth Circuit interpretation of its regulations nationwide during that 2-year period, even though the interpretation “read those PSD regulations in a way that seems to [the Supreme Court] too far a stretch for the language used.” Id. at 577.

    The EPA disagrees that the amendments made to the Regional Consistency regulations are poor public policy. It is generally acceptable to apply a circuit court or District Court decision only within the jurisdiction of the court. A standard that specifically allows for intercircuit nonacquiescence for all CAA decisions other than those issued by the D.C. Circuit Court in response to challenges of nationwide actions would provide a uniform standard for the EPA's application of court decisions that could be anticipated by those who implement the regulations and the regulated community.

    The EPA acknowledges that the EPA Regional office boundaries do not align with the boundaries of circuit courts. However, the EPA Regional offices and Headquarters will endeavor to make clear the states, tribes, or local jurisdictions that are impacted by an adverse court decision. The EPA notes that, consistent with past practice, in certain instances the EPA Regions are already applying different policies across their states based on prior court decisions See, e.g., discussion of follow on to Sierra Club decision in Section 5.b.(2) of this document.

    5. The Revisions Are a Reasonable Revision to the 40 CFR part 56 Regulations and Maintain the EPA's Ability To Exercise Discretion a. Summary of the EPA's Position

    In the proposed rule, we noted that the Regional Consistency regulations already allowed for some variation between the EPA Regional offices. Specifically, the original version of 40 CFR 56.5(b) provided that regional officials should “seek concurrence” from the EPA Headquarters with respect to any interpretations of the Act, rule, regulation, or guidance that “may result in inconsistent application among the Regional offices.” Thus, the Regional Consistency regulations have always contained a mechanism by which an EPA Regional office could diverge from national policy if doing so was required by an adverse court decision (i.e., by seeking Headquarters concurrence). The revisions simplify the process by establishing the presumption that national policy will continue to apply nationwide, but that an EPA Regional office impacted by an adverse court decision could diverge from that national policy without Headquarters concurrence to the extent required by the adverse court decision. In fact, the revisions further the overall goals of the existing Regional Consistency regulations by specifically identifying the possibility of potential differing actions across the EPA regions, especially where multiple courts have already addressed an issue in different ways, and standardizing a response that can be followed by all the regions, such that EPA regions only have to apply local and regional decisions issued by courts in those areas over which the court has jurisdiction.

    Nonetheless, as noted previously, the revisions do not hinder the EPA's ability to respond to an adverse court decision by revising a national policy or interpretation, following appropriate procedures, either on the agency's own initiative or in response to a request from a regulated entity or other interested party. The EPA recognizes that national policy can be influenced by insights and reasoning from judicial decisions and these revisions are not an indication that the agency will ignore persuasive judicial opinions issued in cases involving “locally or regionally applicable” actions. Such opinions may address issues of nationwide importance and could, in appropriate circumstances, lead the agency to adopt new national policy.

    b. Response to Comments (1) Summary of Comments

    Some commenters stated that there would be no predictability under the EPA's proposal. One commenter expressed concern that the EPA Regional offices not covered by an adverse decision could choose to follow the adverse decision versus national policy. Another commenter also noted that the EPA's goal of promoting predictability is irrelevant because CAA § 301(a)(2) requires consistency, not predictability.

    A couple of commenters stated that the EPA's proposed revision of the Regional Consistency regulations goes against 35 plus years of implementing the existing regulations. The commenters also argued that it is inconsistent with the position the EPA has taken in various rulemakings and historic practice, citing statements by a former EPA General Counsel.

    Numerous commenters stated that the proposed amendments to the Regional Consistency regulations would allow the EPA too much discretion in deciding whether certain court decisions will apply on a national scale. They stated that there would be no guarantee that further judicial review would resolve conflicting decisions, citing to currently conflicting decisions on application of the statute of limitations to construction permitting as an example. Commenters expressed concern that this could lead to the EPA applying arbitrary and unspecified factors to determine when judicial decisions will be applied nationally. Several commenters suggested that the EPA should establish criteria it would use to determine when it will not change its national policy and when it will in the face of an adverse court decision. Commenters recommended that the EPA withdraw the rule, or, if it proceeds, provide clear criteria to identify when intercircuit nonacquiescence will be applied.

    One commenter recommended that the Regional Consistency regulations only follow intercircuit nonacquiescence (1) Until three circuit courts have resolved the legal issue; (2) in circumstances of significant importance and impact on protection of human health and the environment; and (3) when documented in a written memorandum or directive signed by the Assistant Administrator for the Office of Air with concurrence of the General Counsel. Another commenter recommended that the EPA revise the Regional Consistency regulations to state that the agency will revisit a national policy whenever a court determines that it is arbitrary, capricious or otherwise unlawful. Further, the commenter offered that in such circumstances the EPA should consider whether to issue guidance clarifying what the EPA's policy will be going forward and undertake a rulemaking to effectuate that agency policy.

    One commenter suggested that if the EPA does finalize the proposed amendments to the Regional Consistency regulations, the EPA should retain requirements “that (1) EPA Headquarters issue or revise mechanisms to address federal court decisions of local or regional applicability, see 40 CFR 56.4, and (2) the EPA Regional offices seek concurrence from the EPA Headquarters to act inconsistently with national EPA policy or interpretation if such action is required by a federal court decision of local or regional applicability. See CFR 56.5.” The commenter indicated these mechanisms promote certainty, predictability, and fairness for regulated entities. Another commenter suggested that the EPA Regional offices should still be required to seek the Office of General Counsel's concurrence when they believe they are bound by an adverse court decision which requires them to deviate from national policy. A separate commenter expressed concern that the proposed revisions would allow a region to deviate from national policy without Headquarters concurrence that such deviation was required by a court decision.

    A couple of commenters argued that the EPA should allow notice and comment on agency determinations that it would depart from these final Regional Consistency regulations and apply certain judicial decisions more broadly on a case-by-case basis. One commenter recommended that “regional consistency determination[s]” be published in the Federal Register. Another commenter stated that the EPA should define “fairness” and “uniformity” in the regulations.

    (2) EPA Response

    The EPA disagrees with the commenters' characterization of this action. The final revisions authorize an EPA region to diverge from national policy only to the extent that the EPA Region must do so in order to act consistently with a decision issued by a federal court that has direct jurisdiction over the EPA Region's action. The EPA regions outside of that court's jurisdiction would still be required to follow national policy or seek Headquarters concurrence to deviate from that policy. This is the same procedure established under the original Regional Consistency regulations.

    The EPA further disagrees with commenters' statement that these final revisions go against the agency's past practice. Following the Summit decision, consistent with the Regional Consistency regulations, EPA Regions 4 and 5 could have sought Headquarters concurrence to deviate from national policy in order to follow the directive of the Sixth Circuit. In fact, EPA Region 4 did utilize this provision following the Sixth Circuit decision in Sierra Club v. EPA, 781 F.3d 299 (6th Cir. 2015), cert. denied 2016 U.S. LEXIS 2221 (March 28, 2016), which held that the EPA was not permitted to approve a redesignation request without first approving reasonably available control measures into the state SIPs. This decision went against the EPA's longstanding interpretation that where an area is attaining the NAAQS, these measures that are designed to bring areas into attainment are “inapplicable” under CAA § 107(d)(3)(E)(ii) for purposes of evaluating a redesignation. Following that decision, officials in EPA Region 4 sought and received concurrence from EPA Headquarters to follow the requirements of the Sierra Club decision, which are inconsistent with the EPA's national policy, in states falling within the jurisdiction of the Sixth Circuit. See 80 FR 56418 (September 18, 2015).6 If the EPA were to adopt the commenters' position, the agency would have to apply the decision of the Sixth Circuit nationwide.

    6 Memorandum from Heather Toney, EPA Region 4 Administrator to Anna Marie Wood, Director, EPA/OAQPS/AQPD, Regional Consistency Concurrence Request—Redesignation Actions in Kentucky and Tennessee, July 20, 2015. Docket ID No. EPA-R04-OAR-2014-0031.

    Thus, the Regional Consistency regulations have never required absolute uniformity between the EPA Regional offices. Rather, the Regional Consistency regulations have always acknowledged that certain EPA Regions may in some instances act differently from others, and these final revisions simply identify and authorize differences in a specific limited circumstance—when necessitated by a federal court decision reviewing an action of local or regional applicability. Accordingly, the EPA does not view finalization of this rule as a significant shift in the practical outcomes. Rather, the EPA is changing the internal procedure followed by the agency in light of an adverse court decision.

    A couple commenters claimed that the revisions to the Regional Consistency regulations are inconsistent with statements made by a former EPA General Counsel. These comments of a former EPA General Counsel were made in the context of a discussion of the intracircuit nonacquiescence practices of other agencies, which is different from intercircuit nonacquiescence as explained in Section III.B.1 of this document. See S. Estreicher & R. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L. J. 679, 717 (February 1989) (surveying approaches of other federal agencies after describing the intracircuit nonacquiescence policies of the Social Security Administration and National Labor Relations Board).

    The EPA considered the suggestions of several commenters to add regulatory text defining the parameters under which the agency would be required to re-evaluate its national policy following adverse court decisions. In response, we note that the EPA carefully reviews each adverse court decision. The types of factors advocated by the commenters (e.g., the reasoning for the adverse court decision, the number of adverse court decisions) generally are factors considered by the EPA as it develops its response to any given adverse court decision, including any reconsideration of the relevant national policy or interpretation. This case-by-case approach is best because it allows the EPA to consider the individual merits of each decision and the appropriate course of action rather than apply a rigid formula. Nonetheless, it would be counterproductive to codify any specific parameters in regulatory text that must be applied in any and all circumstances.

    We also are not requiring that a Regional office obtain Headquarters concurrence regarding whether an adverse court decision requires that Regional office to deviate from otherwise applicable national policy. A key purpose of the revisions is to establish the presumption that national policy remains national policy, and thus the Regional offices are already required to follow national policy to the extent allowed by an adverse court decision applicable to the Regional office's actions. Of course a Regional office is always free to discuss the scope of a court decision with Headquarters, but revisions do not require a Regional office seek concurrence before acting consistent with an adverse court decision applicable to the action being undertaken by the Regional office.

    Contrary to the concerns of some commenters, the final revisions will not allow the EPA to act arbitrarily in determining how to respond to an adverse court decision. Nothing in the final revisions alters the requirement that the EPA act in a reasonable, non-arbitrary manner at all times. Moreover, the final revisions already provide clear criteria regarding when the EPA will apply intercircuit nonacquiescence by establishing the presumption that national policy will not change in response to any given adverse decision.7 In other words, national policy will remain unchanged until such time as the agency changes it through the appropriate method. That presumption does not provide the EPA unlimited discretion, but does retain the discretion to determine national policy granted the EPA by Congress through the CAA.

    7 Except, of course, decisions issued by the D.C. Circuit when reviewing rules of national applicability, or the U.S. Supreme Court.

    The public is always free to petition the EPA to change regulations and national policy if it believes that the agency is inappropriately maintaining national policy in the face of numerous adverse court decisions. If a party believes that the EPA's position is no longer viable, it may petition the agency to change that position, and the party may then seek to challenge the EPA's final response to that petition if the party believes the EPA's final response is unreasonable, so long as the party meets all the usual statutory and jurisprudential requirements for such a challenge. For rules of national applicability, such challenges would be, appropriately, in the D.C. Circuit. See, e.g., Oljato, infra. Thus, the existing system already contains sufficient safeguards to ensure that the EPA continues to act in a reasonable manner, and additional regulatory text is not necessary.

    Thus, as noted earlier, the EPA is not adding regulatory text establishing specific parameters or criteria that would govern how the agency would act in light of adverse court decisions. Nor is the EPA establishing new procedures that would apply if and when the EPA does reconsider national policy. As always, if the EPA does revisit national policy, it will follow the applicable procedures. For example, if the agency is changing regulatory text, it will undertake the appropriate notice and comment process. If, however, the EPA is merely issuing an interpretive rule without changing the regulations themselves, then consistent with the Administrative Procedure Act and U.S. Supreme Court case law, the EPA is not bound to follow a notice and comment process. 5 U.S.C. 553(b)(3)(A); Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015).

    6. The Revisions Are Otherwise Reasonable

    The EPA received other miscellaneous comments that do not fall under the previous discussions, which are responded to in Sections 6.a and b.

    a. Response to Comments That the EPA Was Under No Obligation To Promulgate Revisions to the Regional Consistency Regulations in Response to NEDACAP (1) Summary of Comments

    Several commenters stated that the EPA should withdraw the proposal and leave the Regional Consistency regulations in place as currently written. A couple of commenters noted that the proposed amendments to the Regional Consistency regulations are not necessary because the EPA is under no obligation to undertake the rulemaking action. Commenters stated that while the EPA purported in the proposal notice to undertake the rulemaking in response to the NEDACAP decision, that court did not in any way require the EPA to undertake this rulemaking. In fact, the court applied the regulations when vacating the EPA's Summit memorandum.

    Several commenters stated that the court's suggestion in NEDACAP that the EPA could amend the Regional Consistency regulations is not equivalent to that court's endorsement of such an approach under CAA § 301(a)(2). The commenters note that the D.C. Circuit expressly did not rule on “whether the [Clean Air Act] allows the EPA to adopt different standards in different circuits” in the NEDACAP opinion. 752 F.3d at 1011. Further, one commenter detailed that in NEDACAP, the D.C. Circuit held that the “fair and uniform” language of the existing Regional Consistency regulations, which is parallel to the language in CAA § 301(a)(2), establishes a national regulatory uniformity requirement.

    One commenter noted that the EPA has other ways to respond to the court's decision in NEDACAP. In an example, the commenter cited the EPA's response to conflicting decisions regarding the benzene NESHAP and “federal enforceability.” The commenters also stated that if the EPA stopped “continuously seeking to expand the reach of its regulations through such guidance” the agency could avoid adverse decisions like that in the Sixth Circuit regarding the Summit permitting decision.

    (2) EPA Response

    The EPA has not taken the position that it is required by the D.C. Circuit's opinion in NEDCAP to undertake revisions to the Regional Consistency regulations. We agree that the EPA has discretion in deciding whether or not to undertake the revisions being finalized. The EPA also recognizes that the court's suggestion that the EPA could revise the Regional Consistency regulations is not necessarily a judicial endorsement of the specific revisions being finalized, although it is unlikely that the court would make such a suggestion if any changes to the regulations to address intercircuit nonacquiescence would be in conflict with the statute.

    Contrary to statements made by commenters, the EPA does not “continuously seek[ ] to expand the reach of its regulations through [ ] guidance.” Rather, the EPA issues guidance in an effort to better inform the regulated community and the public regarding the requirements of CAA regulations.

    For the reasons set forth here and in the proposed rule, these revisions to the Regional Consistency regulations are an effective way to address the implications of adverse court decisions rendered by courts reviewing actions of local or regional applicability. While the EPA does have other options available to it, the EPA has determined that these revisions to the Regional Consistency regulations most effectively address the issue presented by an adverse court decision involving an action or local or regional applicability.8 The revisions also accommodate the EPA's proper and longstanding application of the doctrine of intercircuit nonacquiescence in future cases, while eliminating the need to undertake lengthy, narrowly focused rulemakings or seek review of all lower courts' adverse decisions by the U.S. Supreme Court.

    8 With respect to the comments referencing the EPA's past practice with issuing guidance following conflicting court decisions, the examples cited are inapposite. The comment refers to the EPA's response to court decisions regarding application of the benzene NESHAP, citing U.S. v. Hoescht Celanese Corp., 128 F3d. 216, 224 (4th Cir. 1997). However this case does not discuss this topic; it merely involves one court's opinion on whether a company had fair notice of the EPA's interpretation of a regulation. In addition, the cited guidance regarding “federal enforceability” was not issued to reconcile inconsistent circuit court decisions regarding the same term. First, the guidance was originally issued before any adverse decisions from the D.C. Circuit. Second, the policy laid out in the guidance was extended in response to D.C. Circuit decisions consistently interpreting the term “federal enforceability”; first decision was cited as the basis for the second and third opinions. The only “inconsistency” in the decisions was whether the D.C. Circuit vacated the underlying rule pending remand or not.

    b. Response to Miscellaneous Comments (1) Summary of Miscellaneous Comments

    One commenter contended that the EPA failed to acknowledge the difference between an EPA action involving interpretation of a national regulation applied to a particular facility and an EPA action addressing a SIP provision. In the context of SIP provisions, the commenter stated that, “to the extent not prohibited by the CAA, the EPA should (and must) allow inconsistencies in particular SIP provisions as between states.”

    Another commenter supported the EPA's proposed addition to CAA § 56.5(b) insofar as it will ensure that the EPA Regional offices not subject to a court decision will continue to act consistently with existing national policy. However, the commenter believes that the proposed revision to CAA § 56.5(b) does not clearly accomplish this. The commenter contended that the existing and proposed regulatory text should be harmonized to make clear that, after an adverse court decision issued by a court reviewing a locally or regionally applicable action, continued application of national policy by the EPA Regional offices that are not subject to that court's jurisdiction does not require concurrence from EPA Headquarters, notwithstanding any inconsistency with the actions taken by the EPA Region(s) bound by the court's decision.

    (2) EPA Response

    The EPA agrees with the commenter that states are accorded great discretion under CAA § 110 in determining how to meet CAA requirements in SIPs. However, states are obligated to develop SIP provisions that meet fundamental CAA requirements. The EPA has the responsibility to review SIP provisions developed by states to ensure that they in fact meet fundamental CAA requirements. The Regional Consistency regulations generally establish certain mechanisms with the goal of “identifying, preventing, and resolving regional inconsistencies” (45 FR 85400). For the EPA Headquarters office employees, the regulations do this by targeting particular aspects of the Act that have the potential to present consistency problems—including any rule or regulation proposed or promulgated which sets forth requirements for the preparation, adoption, and submittal of state implementation plans.

    We concur with the comment that the EPA Regional offices not covered by an adverse court decision should continue to follow existing national policy. We looked at the proposed revisions to 40 CFR 56.5(b), as well as the revised language provided by the commenters. We agree that the revision to 40 CFR 56.5(b) suggested by the commenter more clearly expresses that the exception to seeking Headquarters concurrence applies only to the EPA regions that must diverge from agency policy due to an adverse court decision with jurisdiction over the EPA region's actions. We have thus changed the regulatory text accordingly.

    IV. Environmental Justice Considerations

    This action finalizes a rule revision that provides procedural direction to the EPA Regions and Headquarters offices in implementing court decisions of a limited scope (i.e., those having local or regional applicability). The EPA did not conduct an environmental analysis for this rule because this rule will not directly affect the air emissions of particular sources. Because this rule will not directly affect the air emissions of particular sources, it does not affect the level of protection provided to human health or the environment. Therefore, this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

    V. 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 (PRA)

    This action does not impose any new information collection burden. The final rule will not create any new requirements for regulated entities, but rather provides procedural direction to the EPA Regions and Headquarters offices in implementing national programs potentially affected by adverse court decisions of a limited scope (i.e., those having local or regional applicability).

    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 a rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This final rule will not impose any requirements directly on small entities. The EPA and any state/local governments implementing delegated EPA programs are the only entities affected directly by this final rule. Other types of small entities are also not directly subject to the requirements of this rule.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The 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. This final rule revises regulations that apply to the EPA, and any delegated state/local governments, only, and would not, therefore, affect the relationship between the national government and the states or the distribution of power and responsibilities among the various levels of government.

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

    This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. This final rule only provides procedural direction to EPA Regions and Headquarters offices in implementing court decisions of a limited scope (i.e., those having local or regional applicability). Thus, Executive Order 13175 does not apply to this action.

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

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

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

    This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    This action 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 that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    The documentation for this decision is contained in Section IV of this document titled, “Environmental Justice Considerations.”

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the 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).

    L. Judicial Review

    Under CAA § 307(b)(1), petitions for judicial review of any nationally applicable regulation, or any action the Administrator “finds and publishes” as based on a determination of nationwide scope or effect must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days of the date the promulgation, approval, or action appears in the Federal Register. This action is nationally applicable, as it revises the rules governing procedures regarding regional consistency in 40 CFR part 56. As a result, petitions for review of this final action must be filed in the United States Court of Appeals for the District of Columbia Circuit by October 3, 2016. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of this action.

    VI. Statutory Authority

    The statutory authority for this action is provided by section 301 of the CAA as amended (42 U.S.C. 7601).

    List of Subjects in 40 CFR Part 56

    Environmental protection, Air pollution control.

    Dated: July 21, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 56 of the Code of Federal Regulations is amended as follows:

    PART 56—REGIONAL CONSISTENCY 1. The authority citation for part 56 continues to read as follows: Authority:

    Sec. 301(a)(2) of the Clean Air Act as amended (42 U.S.C. 7401).

    2. Section 56.3 is amended by adding paragraph (d) to read as follows:
    § 56.3 Policy.

    (d) Recognize that only the decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action,” as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly, and to provide for exceptions to the general policy stated in paragraphs (a) and (b) of this section with regard to decisions of the federal courts that arise from challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)).

    3. Section 56.4 is amended by adding paragraph (c) to read as follows:
    § 56.4 Mechanisms for fairness and uniformity—Responsibilities of Headquarters employees.

    (c) The Administrator shall not be required to issue new mechanisms or revise existing mechanisms developed under paragraphs (a) of this section to address the inconsistent application of any rule, regulation, or policy that may arise in response to the limited jurisdiction of either a federal circuit court decision arising from challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), or a federal district court decision.

    4. Section 56.5 is amended by revising paragraph (b) to read as follows:
    § 56.5 Mechanisms for fairness and uniformity—Responsibilities of Regional Office employees.

    (b) A responsible official in a Regional office shall seek concurrence from the appropriate EPA Headquarters office on any interpretation of the Act, or rule, regulation, or program directive when such interpretation may result in application of the act or rule, regulation, or program directive that is inconsistent with Agency policy. However, the responsible official in a Regional office will not be required to seek such concurrence from the appropriate EPA Headquarters office for actions that may result in inconsistent application if such inconsistent application is required in order to act in accordance with a federal court decision:

    (1) Issued by a Circuit Court in challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), if that circuit court has direct jurisdiction over the geographic areas that the Regional office official is addressing, or (2) Issued by a district court in a specific case if the party the Regional office official is addressing was also a party in the case that resulted in the decision.

    [FR Doc. 2016-17899 Filed 8-2-16; 8:45 a.m.] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2014-0830; FRL-9950-10-OAR] RIN 2060-AS99 National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to amend the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Aerospace Manufacturing and Rework Facilities. In this action, we are clarifying the compliance date for the handling and storage of waste.

    DATES:

    This rule is effective on October 3, 2016 without further notice, unless the EPA receives significant and relevant adverse comment by September 2, 2016. If the EPA receives significant and relevant 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-OAR-2014-0830, 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. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2014-0830. All documents in this docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov, or in hard copy at the EPA Docket Center, EPA WJC West Building, Room Number 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m. Eastern Standard Time, Monday through Friday. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this direct final action, contact Ms. Kim Teal, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5580; fax number: (919) 541-5450; and email address: [email protected] For information about the applicability of the NESHAP to a particular entity, contact Mr. John Cox, Office of Enforcement and Compliance Assurance, (202) 564-1395, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background information. On December 7, 2015 (80 FR 76152), the EPA finalized amendments to the Aerospace Manufacturing and Rework Facilities NESHAP based on our Risk and Technology Review. In this action, we are clarifying the intended compliance date for sources subject to the recently finalized handling and storage of waste requirements.

    Organization of this document. The information in this preamble is organized as follows:

    I. General Information A. Why is the EPA using a direct final rule? B. Does this action apply to me? C. What should I consider as I prepare my comments for the EPA? II. What are the amendments in this direct final rule? III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Why is the EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no significant and relevant adverse comment.

    In the final rule published December 7, 2015, we inadvertently failed to identify the compliance date for sources subject to the requirements for handling and storage of waste. Therefore, in this document we are correcting that oversight. In the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to amend the National Emission Standards for Aerospace Manufacturing and Rework Facilities (40 CFR part 63, subpart GG). If significant and relevant adverse comments are received on the proposal, we will withdraw this direct final rule. However, 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 the EPA receives significant and relevant adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that some or all of the amendments in this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

    B. Does this action apply to me?

    Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

    Table 1—Industrial Source Categories Affected By This Action Source
  • category
  • NESHAP NAICS 1 Code
    Aerospace Manufacturing and Rework Facilities Aerospace Manufacturing and Rework Facilities 336411
  • 336412
  • 336413
  • 336414
  • 336415
  • 336419 481111 481112 481211 481212 481219 1North American Industry Classification System.

    Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

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

    Submitting CBI. Do not submit this information to the EPA through http://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 the 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. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, and Attention Docket ID No. EPA-HQ-OAR-2014-0830.

    II. What are the amendments in this direct final rule?

    This direct final rule provides a compliance date of December 7, 2018, for sources subject to the requirements for handling and storage of waste in 40 CFR part 63, subpart GG. In the final rule dated December 7, 2015, we regulated specialty coating application operations for the first time. The compliance date for these new requirements was December 7, 2018. We also revised and clarified requirements for handling and storage of waste, and our intent was to specify the same December 7, 2018, compliance date for these revised requirements (80 FR 76172-74). However, we neglected to specify a compliance date for these revised waste handling and storage requirements in the regulatory text. Reading the regulatory text as now written would imply that the compliance date for these revised waste handling and storage requirements would be September 1, 1998. Therefore, we are correcting the rule text at 40 CFR 63.749(a)(3) to make it clear that the December 7, 2018, compliance date also applies to sources subject to the waste storage and handling requirements.

    The EPA is accepting comments only on the specific issue raised in this direct final action and the accompanying proposed rule, the compliance date for handling and storage of waste. The EPA is not reopening or accepting comment on any other aspect of the NESHAP for Aerospace Manufacturing and Rework Facilities.

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

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

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB Control Number 2060-0314. This action does not impose any new information collection burden because it serves only to provide a compliance date for the handling and storage of waste requirements.

    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 not impose any costs on small entities. No facilities meeting the Small Business Administration's definition of a small business will incur costs. We have, therefore, concluded that this action will have no net 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 the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The 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.

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

    This action does not have tribal implications as specified in Executive Order 13175. No tribal facilities are known to be engaged in the aerospace manufacturing or rework surface coating operations that would be affected by this action. Thus, Executive Order 13175 does not apply to this action.

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

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

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

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    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 that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in

    Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action serves only to provide a compliance date for the previously promulgated handling and storage of waste requirements.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the 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 63

    Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: July 26, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, part 63 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:

    PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart GG—National Emission Standards for Aerospace Manufacturing and Rework Facilities 2. Section 63.749 is amended by revising paragraph (a)(3) to read as follows:
    § 63.749 Compliance dates and determinations.

    (a) * * *

    (3) Each owner or operator of a specialty coating application operation or handling and storage of waste operation that begins construction or reconstruction after February 17, 2015, shall be in compliance with the requirements of this subpart on December 7, 2015, or upon startup, whichever is later. Each owner or operator of a specialty coating application operation or handling and storage of waste operation that is existing on February 17, 2015, shall be in compliance with the requirements of this subpart on or before December 7, 2018.

    [FR Doc. 2016-18395 Filed 8-2-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405, 424, and 455 [CMS-6073-N] Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Moratoria-Designated Geographic Locations AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Implementation of the waiver demonstration.

    SUMMARY:

    This notice announces the Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in 6 states. The demonstration is being implemented in accordance with section 402 of the Social Security Amendments of 1967 and gives CMS the authority to grant waivers to the statewide enrollment moratoria on a case-by-case basis in response to access to care issues, and to subject providers and suppliers enrolling via such waivers to heightened screening, oversight, and investigations.

    DATES:

    Effective July 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jung Kim, (410) 786-9370. News media representatives must contact CMS' Public Affairs Office at (202) 690-6145 or email them at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Affordable Care Act provided CMS with new tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), including the authority to implement a temporary moratorium on provider enrollment in these programs. CMS uses quantitative and qualitative data to determine whether there is a need for a moratorium, such as reviewing provider and supplier saturation data for the area under consideration for a moratorium and whether such area has significantly higher than average billing per beneficiary or provider per beneficiary ratios. CMS first used its moratoria authority on July 30, 2013, to prevent enrollment of new home health agencies (HHAs) in the Chicago, Illinois and Miami, Florida areas, as well as Part B ground ambulance suppliers in the Houston, Texas area. CMS exercised this authority again on January 30, 2014, to extend the existing moratoria and expand them to include HHAs in the metropolitan areas of Fort Lauderdale, Florida; Detroit, Michigan; Houston, Texas; and Dallas, Texas, as well as Part B ground ambulance suppliers in Philadelphia, Pennsylvania and nearby New Jersey counties. The moratoria have since been extended at 6-month intervals and to date, remain in place in all of the locations previously noted.

    Since implementation of the moratoria, CMS has been able to evaluate the moratoria and has identified several limitations. Because the current moratoria are geographically defined by county, they do not prohibit providers and suppliers from opening new locations or creating a new enrollment outside the moratorium area and moving it into a moratorium area. Moreover, CMS is unable to prevent existing providers and suppliers from outside of a moratoria area from servicing beneficiaries within that area. In fact, CMS has analyzed data showing that some providers and suppliers who are located several hundred miles outside of a moratorium area are billing for services provided to beneficiaries located within that moratorium area. The ability of providers and suppliers to circumvent the moratoria undermines the effectiveness of the moratoria in protecting the integrity of the Medicare, Medicaid, and CHIP programs.

    In order to mitigate the vulnerabilities that have been observed in the current moratoria, CMS is expanding the moratoria on Medicare Part B, Medicaid, and CHIP non-emergency ambulance suppliers and Medicare, Medicaid, and CHIP HHA providers to statewide as announced elsewhere in this issue of the Federal Register.

    II. Demonstration Design and Duration

    CMS is implementing the “Provider Enrollment Moratoria Access Waiver Demonstration” (PEWD), as authorized by section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)), concurrently with the announcement of the statewide expansion of temporary moratoria on the enrollment of non-emergency ambulance suppliers and home health agencies in Medicare, Medicaid, and CHIP in six states elsewhere in this issue of the Federal Register. CMS is implementing this statewide expansion in order to address a high incidence of fraud in the moratoria areas without adversely affecting beneficiary access to care. This demonstration will permit a provider or supplier subject to the moratoria to submit a PEWD application that, if approved, will exempt the provider or supplier from the statewide moratorium in designated geographic areas. Additionally, it will implement a process for heightened review and investigations for such providers and suppliers enrolling pursuant to such waivers.

    In order to qualify for a waiver of the moratoria restrictions, a provider or supplier must demonstrate that an access to care issue exists, and will be subject to heightened screening measures. If the provider or supplier receives a waiver, restrictions will be implemented on the provider's or supplier's service area to limit the provider or supplier to the area with access to care issues and prevent it from furnishing services in locations that are already oversaturated with that provider or supplier type. This restriction will be based on the saturation of providers or suppliers and the number of beneficiaries in the counties where the provider or supplier proposes to operate. Extensive evaluations of providers and suppliers seeking to enroll through this demonstration will be coupled with proactive reviews of submitted claims beginning within the first 60 days of enrollment, as well as increased investigations with referral to law enforcement as appropriate, for newly enrolled and existing providers.

    Under the demonstration, claims submitted for services furnished outside of the provider's or supplier's approved service area will be denied and the provider or supplier may not bill beneficiaries for such services provided. This will limit the financial liability of Medicare, Medicaid, and CHIP beneficiaries and protect them from costs associated with claims submitted by providers and suppliers who are not eligible to provide services in that geographic location.

    For the same reasons that we implementing this demonstration in Medicare, CMS will also implement the demonstration in Medicaid and CHIP, as authorized by section 402 of the Social Security Amendments of 1967.

    A. Medicare Implementation

    The CMS Center for Program Integrity (CPI) will perform all PEWD application reviews and make the relevant access to care determinations.

    CMS is currently engaged in the process to seek OMB approval of a PEWD application form under the Paperwork Reduction Act of 1995. Upon approval of this form, providers and suppliers should complete the form and submit it, with all required documentation, to the designated mailbox: [email protected] Upon receipt of the application, required documentation, and payment of the application fee, CPI will review for completeness and, within 30 days, will respond with confirmation of receipt or in the case of an incomplete application, rejection. Application submission will require full disclosure of affiliations as outlined in the March 1, 2016 proposed rule (81 FR 10720) titled “Medicare, Medicaid, and Children's Health Insurance Programs; Program Integrity Enhancements to the Provider Enrollment Process” (hereinafter referred to as the March 1, 2016 proposed rule). Although this is a proposed rule, we are adopting the proposed procedures for disclosing affiliations for purposes of this demonstration. Should we receive more than one application for a particular geographical area, the applications will be prioritized by order of receipt. An application will not be considered received until it is complete, including fingerprints. A more detailed discussion regarding these requirements may be found later in this section of this document. Subsequently, CMS will have 90 days from initial receipt to review each application and communicate a decision to the provider or supplier.

    Once a complete application is received, the primary determining factor for PEW approval under this demonstration, and the first step in application review, will be a determination regarding beneficiary access to care. This determination will be primarily based upon an evaluation of provider and supplier saturation, provider or supplier to beneficiary ratios, and claims data; this review will be supplemented with the access to care information that the provider or supplier has provided. As a requirement of the application, the provider or supplier will be required to submit detailed access to care information that demonstrates whether an access to care issue exists in the counties where the provider or supplier is attempting to enroll. In 2016, we publicly released moratoria-related saturation data. This data set, located at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2016-Fact-sheets-items/2016-02-22.html, includes national and state, and county level, saturation data that identifies states that are currently impacted by moratorium. This data gives both states and the public detailed information relevant for an access to care justification. Additionally, we expect applicants to submit data to support that an access to care issue exists, which should not subject applicants to unnecessary burdens of performing extensive analyses. CMS will evaluate the provider- or supplier-generated information and compare it with statistical analysis data that is generated internally by CMS to determine whether an access to care issue exists in the identified area.

    If we determine that a beneficiary access to care issue does not exist in the counties where the provider or supplier proposes to operate, the application will be rejected and the application fee will be refunded. A provider or supplier whose application has been rejected may submit a new application at any time. If any subsequent application demonstrates an access to care issue, then we may move forward with processing the application.

    When we determine that beneficiary access to care is limited in the counties where the provider or supplier has proposed to enroll, we will continue to the next step in processing the application. We will utilize the ownership information in the submitted CMS-855, in conjunction with the information on the PEWD application, to perform the following screening measures:

    • License verification.

    • Background investigations including evaluation of affiliations as outlined in the March 1, 2016 proposed rule.

    • Federal debt review.

    • Credit history review.

    • Fingerprint-based criminal background checks (FCBC) of persons with a 5 percent or greater direct or indirect ownership interest, partners and managing employees.

    • Enhanced site visits.

    • Ownership interest verification in LexisNexis and state databases.

    • Evaluation of past behavior in other public programs.

    Providers and suppliers who do not pass these heightened screening requirements will receive a letter stating that their application has been denied and indicating the specific reason(s) for denial. Should it choose to do so, a provider or supplier whose application has been denied may submit an appeal to CMS within 15 days of denial. The appeal must specifically address the reason(s) for denial and detail the action(s) taken to resolve any deficiency. We will evaluate the appeal and process, or deny, the application as appropriate. If a provider or supplier's application is denied because the provider or supplier has not passed the heightened screening requirements, the application fee will not be refunded. Further, if a provider or supplier is denied for a reason under § 424.530(a), the provider or supplier may not reapply under the Provider Enrollment Waiver (PEW). Additional information about submitting an appeal may be found on the provider enrollment moratoria Web site at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/ProviderEnrollmentMoratorium.html.

    If CMS determines that a provider or supplier meets the requirements of the PEWD, it will forward the provider or supplier's CMS 855 application to the Medicare Administrative Contractor (MAC) for further processing. The MAC will process the application and determine whether enrollment is appropriate based on all current enrollment policies and procedures.

    In addition to the heightened screening measures previously described, providers or suppliers that enroll via this demonstration will also be subject to a 1-year period of enhanced oversight as authorized by section 1866(j)(3)(A) of the Social Security Act (the Act). As part of this oversight, providers or suppliers that enroll through the demonstration will be limited to furnishing services within a specific geographic area based on beneficiary access to care determinations. Providers and suppliers submitting a PEWD application will specify a requested geographic area. However, this area may be further restricted or expanded based upon CMS's determination regarding the scope of the access to care issue. Claims for services furnished outside of the approved service area will be denied and the provider or supplier may not bill beneficiaries for services outside of the approved service area.

    Another aspect of our enhanced oversight during this demonstration will be to closely monitor the billing patterns of providers and suppliers through the Fraud Prevention System (FPS). Any abuse of billing privileges may result in revocation of Medicare enrollment. All applicants who are enrolled through the PEWD will be subject to all Medicare policies and regulations, including the requirement of revalidation of their Medicare enrollment within five years of initial enrollment, in addition to the heightened oversight that is implemented through the demonstration.

    If CMS determines there is a beneficiary access to care issue, we will utilize tools that CMS already has in place to facilitate care. Both the regional offices and 1-800-MEDICARE have experience and valuable tools in resolving beneficiary access to care issues, including Home Health Compare and similar provider and supplier locator resources. As current practice dictates, the beneficiary will also be assisted with widening his search, if appropriate, and can be given additional means to assist in finding care, including utilizing the Senior Health Insurance Program (SHIP), an organization that is very experienced in addressing such issues. In the event that the beneficiary is a Medicare Advantage enrollee, then their plan would be contacted and responsible for providing a resolution to their access to care issue.

    B. Increased Investigation and Prosecution

    Throughout the course of the demonstration, CMS will work with all of its state, federal and law enforcement partners to identify fraudulent providers and suppliers and will take administrative action to remove such providers and suppliers from the Medicare program. For example, within 60 days of a provider or supplier's enrollment pursuant to the PEW, we will perform proactive monitoring and oversight of such provider or supplier, including proactive examination of claims data and investigation of billing anomalies. Further, we will prioritize PEWD-related investigations and will make referrals to appropriate law enforcement partners, including Department of Justice (DOJ), Office of Inspector General (OIG), and state law enforcement agencies, for prosecution of fraud.

    C. Medicaid and CHIP Implementation

    In addition to the Medicare program, this demonstration will also apply to Medicaid and CHIP. The states will administer the Medicaid and CHIP PEWD and will independently evaluate access to care. If a state determines that a statewide expansion of temporary moratoria would pose unique access to care concerns as compared with more geographically limited moratoria, then the state may elect to lift the moratoria after notifying the Secretary. However, we anticipate that, in the majority of cases, states will be able to use the flexibilities afforded by PEWD to address access to care concerns.

    All PEWD-related processes, including but not limited to heightened screening, enrollment, denials, and appeals will be operationalized by the state Medicaid and CHIP agencies in accordance with Federal and State regulations and guidance. The states will make recommendations to CMS regarding when a provider should be enrolled based on access to care, and must wait for CMS concurrence prior to enrolling a provider under the PEWD. CMS will evaluate all recommendations within 30 days of receipt and will advise the state as to whether or not CMS concurs with the recommendation to move forward in the enrollment process. States will not be required to seek approval from CMS to deny a PEWD application. If a provider or supplier receives an enrollment waiver from Medicare, the provider or supplier will be eligible to enroll in Medicaid or CHIP without further review by the states or further concurrence by CMS. However, if a provider or supplier receives a Medicaid or CHIP waiver, the provider or supplier must separately apply for a waiver with Medicare.

    D. Demonstration Conclusion

    CMS will utilize the PEWD as an opportunity to observe the statewide moratoria and heightened application review effectiveness until the moratoria are lifted, or for a total of 3 years, whichever comes first. Should the PEWD prove to be a useful tool, we will explore options for continuing and expanding the most successful aspects outside of the context of a demonstration. The enhanced oversight exercised as part of the demonstration will also allow us to identify trends and vulnerabilities in the moratoria states and make program adjustments to address fraud schemes as they transform over time.

    At the conclusion of the demonstration, those enrollments that occurred as part of the PEWD will be converted to standard enrollments without geographical billing restrictions.

    E. Duration of the Demonstration

    The PEWD will begin concurrently with statewide expansion of moratoria of HHAs and ambulance suppliers in 6 states (which will be in place for 6 months with the potential for extensions in 6-month increments) and will commence on July 29, 2016. This demonstration will last until the statewide moratoria are lifted, or for a total of 3 years through (concluding on July 28, 2019), whichever comes first.

    IV. Collection of Information Requirements A. Background

    In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA) we requested emergency review under 5 CFR 1320.13(a)(2)(i) because public harm is reasonably likely to result if the regular clearance procedures were followed. Interested parties may comment on the collection of information requirements during a 2-week comment period beginning on July 29, 2016. Those comments will be reviewed prior to OMB action. Once approved, any information collection will be active for no more than 6 months.

    Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day and 30-day notice in the Federal Register concerning each proposed collection of information requirements. To comply with the PRA, CMS will publish the 60-day Federal Register notice immediately following OMB approval of the emergency information collection requirement (ICR).

    To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:

    • The need for the information collection and its usefulness in carrying out the proper functions of our agency.

    • The accuracy of our estimate of the information collection burden.

    • The quality, utility, and clarity of the information to be collected.

    • Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

    We are soliciting public comment on the ICRs outlined as follows.

    B. Burden Estimate (Hours and Wages) 1. Paperwork Burden Estimate (Hours)

    The provider and supplier burden associated with completion of this form is estimated at six hours per form. This will include the following time burden per form:

    • 2 hours for completion of fingerprint-based criminal background check (FCBC) • 2 hours for completion of access to care assessment • 1.5 hours for completion of form • 0.5 hours for completion of other miscellaneous administrative activities

    There will be variation to this estimate based on proximity to a fingerprinting offices as well as the complexity of the data that the provider or suppliers elects to submit. To assist with completion of access to care assessment, CMS has HHA and ambulance saturation data available at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2016-Fact-sheets-items/2016-02-22.html.

    CMS expects an estimate of 800 new applicants 1 requesting waiver for a total of 4,800 burden hours annually. Additionally, the provider will have the additional burden associated with completion of the CMS-855, which is required for enrollment into Medicare. This burden is covered under OMB control number 0938-0685.

    1 800 applicants is an estimate based upon the number of new enrollments plus the number of denials due to moratoria in all moratoria states.

    2. Paperwork Burden Estimate (cost)

    This form will be completed by provider and suppliers seeking a waiver to enroll in a Moratoria area. The cost burden is estimated at $26.00 ($13.00 base pay) an hour for completion of access to care analysis and miscellaneous administrative activities, totaling $65.00 per application, equaling $52,000 annually. The cost burden is estimated at $178.70 ($89.35 base pay) an hour for the owner to obtain fingerprints and waiver form totaling $625.45 per application, equaling $500,360 annually. Estimated annual burden for 800 newly enrolling applicants totals $552,360.To derive average costs, we used date from the Bureau of Labor Statistics' May 2015 National Occupational Employment and Wage Estimates (http://www.bls.gov/oes/current/oes_nat.htm#31-0000 for healthcare support occupations and http://www.bls.gov/oes/current/oes111011.htm for chief executives.) Hourly wage rates include the costs of fringe benefits (calculated at 100 percent of salary) and the adjusted hourly wage.

    C. Response to Comments

    We welcome comments on all burden estimates contained in the collection of information section of this notice. If you comment on these information collection and recordkeeping requirements, please do either of the following:

    1. Submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: CMS Desk Officer, (CMS-10629), Fax: (202) 395-6974; or Email: [email protected].

    V. Waiver Authority

    Under section 402(b) of Pub. L. 90-248 (42 U.S.C. 1395b-1(b)), certain requirements of the Act and implementing regulations will be waived in order to implement this demonstration. Specifically, CMS will waive the following authorities in Florida, Illinois, Michigan, New Jersey, Pennsylvania, and Texas:

    • Waiver of § 424.518(c) and (d) and 455.434(a) which describe the fingerprinting rules for enrollment in Medicare, Medicaid and CHIP.2 This waiver involves expanding the existing regulatory authority in two ways: (1) To include ambulance suppliers requesting a PEW waiver within the categories of providers and suppliers to which the FCBC requirements apply; and (2) to include managing employees within the associated individuals subject to an FCBC when the provider or supplier seeks to enroll according to the PEW. Additionally, we intend to modify the authority which currently requires denial or revocation of providers or suppliers who fail to submit fingerprints, to instead specify that a PEWD application will be rejected if the provider or supplier fails to submit the required fingerprints within 30 days.

    2 According to § 457.990, the enrollment screening requirements applicable to providers enrolling in Medicaid apply equally to those enrolling in CHIP.

    • Waiver of section 1866(j)(3)(B) of the Act, which requires program instruction or regulatory interpretation in order to implement section 1866(j)(3) of the Act for the provisional period of enhanced oversight for new providers of services and suppliers. We intend to implement the requirements of section 1866(j)(3) of the Act for purposes of this demonstration and in the absence of regulation or other instruction in order to allow for a 1-year period of enhanced oversight of newly enrolling providers and suppliers under this demonstration.

    • Waiver of § 424.545, Part 498 Subparts D and E, and § 405.803(b) of the regulations, as well as section 1866(j)(8) of the Act which allow a provider or supplier the right to request a hearing with an administrative law judge and the Department Appeals Board in the case of denial of an enrollment application. Denials of enrollment pursuant to this demonstration will be appealable only to CMS, and any applicant to the PEWD will waive their right to further appeal.

    • Waiver of section 1866(j)(7) of the Act and §§ 424.570 and 455.470 of the regulations which specify that the moratoria must be implemented at a provider- or supplier-type level, in order to allow a case-by-case exception process to moratoria.

    Dated: July 26, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services.
    [FR Doc. 2016-18381 Filed 7-29-16; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 424 and 455 [CMS-6059-N5] Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Implementation and Extension of Temporary Moratoria on Enrollment of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Designated Geographic Locations and Lifting of the Temporary Moratoria on Enrollment of Part B Emergency Ground Ambulance Suppliers in All Geographic Locations AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Extension, implementation, and lifting of temporary moratoria.

    SUMMARY:

    This document announces the extension of temporary moratoria on the enrollment of new Medicare Part B non-emergency ground ambulance suppliers and Medicare home health agencies (HHAs), subunits, and branch locations in specific locations within designated metropolitan areas in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey to prevent and combat fraud, waste, and abuse. It also announces the implementation of temporary moratoria on the enrollment of new Medicare Part B non-emergency ground ambulance suppliers and Medicare HHAs, subunits, and branch locations in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey on a statewide basis. In addition, it announces the lifting of the moratoria on all Part B emergency ground ambulance suppliers. These moratoria, and the changes described in this document, also apply to the enrollment of HHAs and non-emergency ground ambulance suppliers in Medicaid and the Children's Health Insurance Program.

    DATES:

    Effective July 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Jung Kim, (410) 786-9370.

    News media representatives must contact CMS' Public Affairs Office at (202) 690-6145 or email them at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background A. CMS' Implementation of Temporary Enrollment Moratoria

    Under the Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively known as the Affordable Care Act), the Congress provided the Secretary with new tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). Section 6401(a) of the Affordable Care Act added a new section 1866(j)(7) to the Social Security Act (the Act) to provide the Secretary with authority to impose a temporary moratorium on the enrollment of new Medicare, Medicaid or CHIP providers and suppliers, including categories of providers and suppliers, if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse under these programs. Section 6401(b) of the Affordable Care Act added specific moratorium language applicable to Medicaid at section 1902(kk)(4) of the Act, requiring States to comply with any moratorium imposed by the Secretary unless the State determines that the imposition of such moratorium would adversely impact Medicaid beneficiaries' access to care. Section 6401(c) of the Affordable Care Act amended section 2107(e)(1) of the Act to provide that all of the Medicaid provisions in sections 1902(a)(77) and 1902(kk) are also applicable to CHIP.

    In the February 2, 2011 Federal Register (76 FR 5862), CMS published a final rule with comment period titled, “Medicare, Medicaid, and Children's Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers,” which implemented section 1866(j)(7) of the Act by establishing new regulations at 42 CFR 424.570. Under § 424.570(a)(2)(i) and (iv), CMS, or CMS in consultation with the Department of Health and Human Services' Office of Inspector General (HHS-OIG) or the Department of Justice (DOJ), or both, may impose a temporary moratorium on newly enrolling Medicare providers and suppliers if CMS determines that there is a significant potential for fraud, waste, or abuse with respect to a particular provider or supplier type, or particular geographic locations, or both. At § 424.570(a)(1)(ii), CMS stated that it would announce any temporary moratorium in a Federal Register document that includes the rationale for the imposition of such moratorium. This document fulfills that requirement.

    In accordance with section 1866(j)(7)(B) of the Act, there is no judicial review under sections 1869 and 1878 of the Act, or otherwise, of the decision to impose a temporary enrollment moratorium. A provider or supplier may use the existing appeal procedures at 42 CFR part 498 to administratively appeal a denial of billing privileges based on the imposition of a temporary moratorium; however the scope of any such appeal is limited solely to assessing whether the temporary moratorium applies to the provider or supplier appealing the denial. Under § 424.570(c), CMS denies the enrollment application of a provider or supplier if the provider or supplier is subject to a moratorium. If the provider or supplier was required to pay an application fee, the application fee will be refunded if the application was denied as a result of the imposition of a temporary moratorium (see § 424.514(d)(2)(v)(C)).

    Based on this authority and our regulations at § 424.570, we initially imposed moratoria to prevent enrollment of new HHAs, subunits, and branch locations 1 (hereafter referred to as HHAs) in Miami-Dade County, Florida and Cook County, Illinois, as well as surrounding counties, and Medicare Part B ground ambulance suppliers in Harris County, Texas and surrounding counties, in a notice issued on July 31, 2013 (78 FR 46339). We exercised this authority again in a notice published on February 4, 2014 (79 FR 6475) when we extended the existing moratoria for an additional 6 months and expanded them to include enrollment of HHAs in Broward County, Florida; Dallas County, Texas; Harris County, Texas; and Wayne County, Michigan and surrounding counties, and enrollment of ground ambulance suppliers in Philadelphia, Pennsylvania and surrounding counties. Then, we further extended these moratoria in documents issued on August 1, 2014 (79 FR 44702), February 2, 2015 (80 FR 5551), July 28, 2015 (80 FR 44967), and February 2, 2016 (81 FR 5444).

    1 As noted in the preamble to the final rule with comment period implementing the moratorium authority (February 2, 2011, CMS-6028-FC (76 FR 5870), home health agency subunits and branch locations are subject to the moratoria to the same extent as any other newly enrolling home health agency.

    B. Determination of the Need for Moratoria

    In imposing these enrollment moratoria, CMS considered both qualitative and quantitative factors suggesting a high risk of fraud, waste, or abuse. CMS relied on law enforcement's longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions. CMS' determination of a high risk of fraud, waste, or abuse in these provider and supplier types within these geographic locations was then confirmed by CMS' data analysis, which relied on factors the agency identified as strong indicators of risk. (For a more detailed explanation of this determination process and of these authorities, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475)).

    Because fraud schemes are highly migratory and transitory in nature, many of CMS' program integrity authorities and anti-fraud activities are designed to allow the agency to adapt to emerging fraud in different locations. The laws and regulations governing CMS' moratoria authority give us flexibility to use any and all relevant criteria for future moratoria, and CMS may rely on additional or different criteria as the basis for future moratoria.

    1. Application to Medicaid and the Children's Health Insurance Program (CHIP)

    The February 2, 2011 final rule also implemented section 1902(kk)(4) of the Act, establishing new Medicaid regulations at § 455.470. Under § 455.470(a)(1) through (3), the Secretary may impose a temporary moratorium, in accordance with § 424.570, on the enrollment of new providers or provider types after consulting with any affected State Medicaid agencies. The State Medicaid agency must impose a temporary moratorium on the enrollment of new providers or provider types identified by the Secretary as posing an increased risk to the Medicaid program unless the State determines that the imposition of such moratorium would adversely affect Medicaid beneficiaries' access to medical assistance and so notifies the Secretary. The final rule also implemented section 2107(e)(1)(D) of the Act by providing, at § 457.990 of the regulations, that all of the provisions that apply to Medicaid under sections 1902(a)(77) and 1902(kk) of the Act, as well as the implementing regulations, also apply to CHIP.

    Section 1866(j)(7) of the Act authorizes imposition of a temporary enrollment moratorium for Medicare, Medicaid, and/or CHIP, “if the Secretary determines such moratorium is necessary to prevent or combat fraud, waste, or abuse under either such program.” While there may be exceptions, CMS believes that generally, a category of providers or suppliers that poses a risk to the Medicare program also poses a similar risk to Medicaid and CHIP. Many of the new anti-fraud provisions in the Affordable Care Act reflect this concept of “reciprocal risk” in which a provider that poses a risk to one program poses a risk to the other programs. For example, section 6501 of the Affordable Care Act titled, “Termination of Provider Participation under Medicaid if Terminated Under Medicare or Other State Plan,” which amends section 1902(a)(39) of the Act, requires State Medicaid agencies to terminate the participation of an individual or entity if such individual or entity is terminated under Medicare or any other State Medicaid plan. Additional provisions in title VI, Subtitles E and F of the Affordable Care Act also support the determination that categories of providers and suppliers pose the same risk to Medicaid as to Medicare. Section 6401(a) of the Affordable Care Act required us to establish levels of screening for categories of providers and suppliers based on the risk of fraud, waste, and abuse determined by the Secretary. Section 6401(b) of the Affordable Care Act required State Medicaid agencies to screen providers and suppliers based on the same levels established for the Medicare program. This reciprocal concept is also reflected in the Medicare moratoria regulations at § 424.570(a)(2)(ii) and (iii), which permit CMS to impose a Medicare moratorium based solely on a State imposing a Medicaid moratorium. Accordingly, CMS has determined that there is a reasonable basis for concluding that a category of providers or suppliers that poses a risk to Medicare also poses a similar risk to Medicaid and CHIP, and that a moratorium in all of these programs is necessary to effectively combat this risk.

    2. Consultation With Law Enforcement

    In consultation with the HHS Office of Inspector General (OIG) and the Department of Justice (DOJ), CMS previously identified two provider and supplier types in nine geographic locations that warrant a temporary enrollment moratorium. For a more detailed discussion of this consultation process, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475).

    3. Data Analysis

    In addition to consulting with law enforcement, CMS also analyzed its own data to identify specific provider and supplier types within geographic locations with significant potential for fraud, waste or abuse, therefore warranting the imposition of enrollment moratoria.

    Four of the six states subject to the temporary enrollment moratoria for HHAs and Part B non-emergency ground ambulance suppliers have counties that contain or are adjacent to HEAT Medicare Fraud Strike Force locations, with the exception of Pennsylvania and New Jersey. All six states are also consistently ranked near the top for the identified metrics among counties with at least 200,000 Medicare beneficiaries in 2012.

    4. Beneficiary Access to Care

    Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its State partners, and CMS carefully evaluated access for the target moratorium locations with every imposition and extension of the moratoria. Prior to imposing these moratoria, CMS reviewed Medicare data for these areas and found no concerns with beneficiary access to HHAs or ground ambulance suppliers. CMS also consulted with the appropriate State Medicaid Agencies and with the appropriate State Departments of Emergency Medical Services to determine if the moratoria would create access to care concerns for Medicaid and CHIP beneficiaries in the targeted locations and surrounding counties. All of CMS' State partners were supportive of CMS' analysis and proposals, and together with CMS, determined that these moratoria would not create access to care issues for Medicaid or CHIP beneficiaries.

    5. When a Temporary Moratorium Does Not Apply

    Under § 424.570(a)(1)(iii), a temporary moratorium does not apply to changes in practice locations, changes to provider or supplier information such as phone number, address, or changes in ownership (except changes in ownership of HHAs that require initial enrollments under § 424.550). Also, in accordance with § 424.570(a)(1)(iv), the moratorium does not apply to an enrollment application that a CMS contractor has already approved, but has not yet entered into the Provider Enrollment Chain and Ownership System (PECOS) at the time the moratorium is imposed.

    6. Lifting a Temporary Moratorium

    In accordance with § 424.570(b), a temporary enrollment moratorium imposed by CMS will remain in effect for 6 months. If CMS deems it necessary, the moratorium may be extended in 6-month increments. CMS will evaluate whether to extend or lift the moratorium before the end of the initial 6-month period and, if applicable, any subsequent moratorium periods. If one or more of the moratoria announced in this document are extended, CMS will publish a document regarding such extensions in the Federal Register.

    As provided in § 424.570(d), CMS may lift a moratorium at any time if the President declares an area a disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, if circumstances warranting the imposition of a moratorium have abated, if the Secretary has declared a public health emergency, or if, in the judgment of the Secretary, the moratorium is no longer needed.

    Once a moratorium is lifted, the provider or supplier types that were unable to enroll because of the moratorium will be designated to CMS' high screening level under §§ 424.518(c)(3)(iii) and 455.450(e)(2) for 6 months from the date the moratorium was lifted.

    II. Lifting of Moratorium on New Part B Emergency Ambulance Suppliers in All Geographic Locations

    CMS previously imposed moratoria on the enrollment of new Part B ground ambulance suppliers in the Texas counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; the Pennsylvania counties of Bucks, Delaware, Montgomery, and Philadelphia; and the New Jersey counties of Burlington, Camden, and Gloucester. These moratoria became effective upon publication of the notice in the Federal Register on July 31, 2013 (78 FR 46339) and the moratoria document on February 4, 2014 (79 FR 6475), and were subsequently extended by documents published in the Federal Register on August 1, 2014 (79 FR 44702), February 2, 2015 (80 FR 5551), and July 28, 2015 (80 FR 44967), and February 2, 2016 (81 FR 5444).

    Throughout the duration of the temporary moratoria on newly enrolling Part B ground ambulance providers, CMS has evaluated the risk to the Medicare program of separate categories of ambulance suppliers. This evaluation has shown that the primary risk to the program comes from the non-emergency ambulance supplier category. Additionally, we have observed potential access to care related issues for emergency ambulance services in some areas. As a result, CMS is not extending the temporary moratoria on the enrollment of Part B emergency ground ambulance suppliers in any geographic locations in the states of New Jersey, Pennsylvania, or Texas. However, we will continue to evaluate all ambulance services for indicators of fraud, waste, and abuse and will evaluate the need for future moratoria based on these indicators. The lifting of the moratorium on new Part B emergency ambulance suppliers in all geographic locations also applies to Medicaid and CHIP. New Part B suppliers of emergency ambulance services will be permitted to enroll as of July 29, 2016. Any such suppliers that enroll within 6 months of that date will be included in the “high” risk screening category, as provided in § 424.518(c)(3). New emergency ambulance suppliers that furnish both emergency and non-emergency services will only be able to bill for emergency transportation services.

    III. Extension of Home Health and Ambulance Moratoria—Geographic Locations

    CMS previously imposed moratoria on the enrollment of new HHAs in the Florida counties of Broward, Miami-Dade, and Monroe; the Illinois counties of Cook, DuPage, Kane, Lake, McHenry, and Will; the Michigan counties of Macomb, Monroe, Oakland, Washtenaw, and Wayne; and the Texas counties of Brazoria, Chambers, Collin, Fort Bend, Galveston, Dallas, Harris, Liberty, Denton, Ellis, Kaufman, Montgomery, Rockwall, Tarrant, and Waller. Further, we previously imposed moratoria on the enrollment of new ground ambulance suppliers in the Texas counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; the Pennsylvania counties of Bucks, Delaware, Montgomery, and Philadelphia; and the New Jersey counties of Burlington, Camden, and Gloucester. These moratoria became effective upon publication of the notice in the Federal Register on July 31, 2013 (78 FR 46339) and the moratoria document on February 4, 2014 (79 FR 6475), and were subsequently extended by documents published in the Federal Register on August 1, 2014 (79 FR 44702), February 2, 2015 (80 FR 5551), July 28, 2015 (80 FR 44967)), and February 2, 2016 (81 FR 5444).

    As provided in § 424.570(b), CMS may deem it necessary to extend previously-imposed moratoria in 6-month increments. Under this authority, CMS is extending the temporary moratoria on the Medicare enrollment of HHAs and Part B non-emergency ground ambulance suppliers in the geographic locations discussed herein. Under regulations at § 455.470 and § 457.990, these moratoria also apply to the enrollment of HHAs and non-emergency ground ambulance suppliers in Medicaid and CHIP. Under § 424.570(b), CMS is required to publish a document in the Federal Register announcing any extension of a moratorium, and this extension of moratoria document fulfills that requirement.

    CMS consulted with the HHS-OIG regarding the extension of the moratoria on new HHAs and Part B non-emergency ground ambulance suppliers in all of the moratoria counties, and HHS-OIG agrees that a significant potential for fraud, waste, and abuse continues to exist regarding those provider and supplier types in these geographic areas. The circumstances warranting the imposition of the moratoria have not yet abated, and CMS has determined that the moratoria are still needed as we monitor the indicators and continue with administrative actions to combat fraud and abuse, such as payment suspensions and revocations of provider/supplier numbers. (For more information regarding the monitored indicators, see the February 4, 2014 moratoria document (79 FR 6475)).

    Based upon CMS' consultation with the relevant State Medicaid agencies, CMS has concluded that extending these moratoria will not create an access to care issue for Medicaid or CHIP beneficiaries in the affected counties at this time. CMS also reviewed Medicare data for these areas and found there are no current problems with access to HHAs or ground ambulance suppliers. Nevertheless, the agency will continue to monitor these locations to make sure that no access to care issues arise in the future.

    Based upon our consultation with law enforcement and consideration of the factors and activities described previously, CMS has determined that the temporary enrollment moratoria should be extended for an additional 6 months.

    IV. Implementation of New Home Health and Part B Non-Emergency Ambulance Moratoria—Geographic Locations 1. Geographic locations affected by implementation.

    CMS has determined that the factors initially evaluated to implement the temporary moratoria show that a high risk of fraud, waste, and abuse exists beyond the current moratoria areas, which may suggest that a high risk of fraud, waste, or abuse exists due largely to circumvention of the moratoria by some providers and suppliers. The primary means of circumvention includes enrolling a new practice location outside of a moratorium area and servicing beneficiaries within the moratorium area. Additionally, CMS has continued to see areas of saturation that exceed the national average in the moratoria states. As a result, CMS, in consultation with the OIG, has determined that it is necessary to expand the temporary moratoria on a statewide basis, by implementing temporary moratoria on all newly enrolling HHAs in the remaining counties in Florida, Illinois, Michigan, and Texas, and on all newly enrolling Part B non-emergency ground ambulance suppliers in the remaining counties in Texas, New Jersey, and Pennsylvania, in order to combat fraud, waste, or abuse in those states. CMS has determined that these moratoria will also apply to Medicaid and CHIP in each state, although states continue to have the ability to opt out if they determine that the imposition of such moratorium would adversely impact Medicaid beneficiaries' access to care.

    In the document published on February 4, 2014 (79 FR 6475) initially imposing the temporary moratorium on enrollment of HHAs in Broward County, Florida, CMS stated that “it is not necessary to extend the moratorium to the other counties that border Broward because of the state's home health licensing rules that prevent providers enrolling in these counties from serving beneficiaries in Broward.” However, through data analytics, we have determined that these state licensure restrictions are not adequate deterrents to prevent a provider from enrolling in one county and servicing beneficiaries in other counties. In some cases, CMS has observed that providers are servicing beneficiaries located over 300 miles from their practice location.

    As a result of this and other data analyses, CMS has determined that it is necessary to expand these moratoria to be statewide. Accordingly, beginning on the effective date of this document, no new HHAs will be enrolled in Medicare, Medicaid, or CHIP with a practice location in Florida, Illinois, Michigan, or Texas unless their enrollment application has already been approved but not yet entered into PECOS for Medicare or the State Provider/Supplier Enrollment System for Medicaid and CHIP as of the effective date of this document. Additionally, no new Part B non-emergency ground ambulance supplier will be enrolled into Medicare, Medicaid, or CHIP with a practice location in Texas, New Jersey, or Pennsylvania unless their enrollment application has already been approved but not yet entered into PECOS for Medicare or the State Provider/Supplier Enrollment System for Medicaid and CHIP as of the effective date of this document.

    2. Beneficiary Access to Care

    Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its State partners, and CMS carefully evaluated access for the target moratorium locations. CMS recognizes the increased risk of beneficiary access to care issues when implementing statewide moratoria. In order to address this issue, we have performed a detailed access to care analysis for all moratoria states, and identified the counties with lower saturation of home health and Part B ground ambulance providers or suppliers.2 These data include an evaluation of provider and supplier saturation, provider or supplier to beneficiary ratios, and claims data in the Medicare program. Beneficiary access to care is a primary concern for CMS, and we will continue to utilize these data to address the lowest saturation areas. As a continual measure, CMS will update and evaluate these data to monitor attrition of home health and Part B ground ambulance providers or suppliers from Medicare and make certain that beneficiaries in counties with lower provider or supplier saturation are not negatively impacted by the moratoria or related enforcement activities. Any beneficiary that experiences access to care issues may report them to 1-800-MEDICARE or their state's Quality Improvement Organization (QIO) for resolution.

    2 Data related to HHAs and Part B non-emergency ambulance suppliers may be viewed at https://data.cms.gov/moratoria-data.

    CMS does not currently have the regulatory authority to implement an exception process to respond to beneficiary access to care issues; therefore, concurrently with the statewide moratoria implementation, CMS is announcing a demonstration under the authority provided in Section 402(a)(l)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-l(a)(l)(J)) that waives certain authorities and allows for such exceptions. The demonstration will, among other things, allow for access to care-based exceptions to the moratoria in certain limited circumstances. This will allow enrollment of a provider or supplier after a heightened review of that provider has been conducted.

    CMS has determined that this exception process will also apply to Medicaid and CHIP providers in each state. CMS will work collaboratively with states to implement this demonstration in a way that accommodates the access to care needs of beneficiaries in each state.

    Details of the demonstration may be found at elsewhere in this issue of the Federal Register.

    V. Summary of the Moratoria Locations

    CMS is executing its authority under sections 1866(j)(7), 1902(kk)(4), and 2107(e)(1)(D) of the Act to extend and implement temporary enrollment moratoria on HHAs for all counties in Florida, Illinois, Michigan, and Texas, as well as Part B non-emergency ground ambulance suppliers for all counties in New Jersey, Pennsylvania, and Texas.

    VI. Clarification of Right to Judicial Review

    Section 1866(j)(7)(B) of the Act states that there shall be no judicial review under section 1869, section 1878, or otherwise, of a temporary moratorium imposed on the enrollment of new providers of services and suppliers if the Secretary determines that the moratorium is necessary to prevent or combat fraud, waste, or abuse. Accordingly, our regulations at 42 CFR 498.5(l)(4) state that for appeals of denials based on a temporary moratorium, the scope of review will be limited to whether the temporary moratorium applies to the provider or supplier appealing the denial. The agency's basis for imposing a temporary moratorium is not subject to review. Our regulations do not limit the right to seek judicial review of a final agency decision that the temporary moratorium applies to a particular provider or supplier. In the preamble to the February 2, 2011 (76 FR 5918) final rule with comment period establishing this regulation, we explained that “a provider or supplier may administratively appeal an adverse determination based on the imposition of a temporary moratorium up to and including the Department Appeal Board (DAB) level of review.” We are clarifying that providers and suppliers that have received unfavorable decisions in accordance with the limited scope of review described in § 498.5(l)(4) may seek judicial review of those decisions after they exhaust their administrative appeals. However, we reiterate that section 1866(j)(7)(B) of the Act precludes judicial review of the agency's basis for imposing a temporary moratorium.

    VII. Collection of Information Requirements

    This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    VIII. Regulatory Impact Statement

    CMS has examined the impact of this document as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).

    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). A regulatory impact analysis (RIA) must be prepared for major regulatory actions with economically significant effects ($100 million or more in any1 year). This document will prevent the enrollment of new home health providers and Part B non-emergency ground ambulance suppliers in Medicare, Medicaid, and CHIP. Though savings may accrue by denying enrollments, the monetary amount cannot be quantified. After the imposition of the initial moratoria on July 31, 2013, 889 HHAs, and 19 ambulance companies in all geographic areas affected by the moratoria had their applications denied. We have found the number of applications that are denied after 60 days declines dramatically, as most providers and suppliers will not submit applications during the moratoria period. Therefore, this document does not reach the economic threshold, and thus is not considered a major action.

    The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. CMS is not preparing an analysis for the RFA because it has determined, and the Secretary certifies, that this document will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if an action may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, CMS defines a small rural hospital as a hospital that is located outside of a metropolitan statistical area (MSA) for Medicare payment purposes and has fewer than 100 beds. CMS is not preparing an analysis for section 1102(b) of the Act because it has determined, and the Secretary certifies, that this document will not have a significant impact on the operations of a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any regulatory action whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2015, that threshold is approximately $146 million. This document will have no consequential effect on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed regulatory action (and subsequent final action) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Because this document does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

    In accordance with the provisions of Executive Order 12866, this document was reviewed by the Office of Management and Budget.

    Dated: July 13, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services.
    [FR Doc. 2016-18383 Filed 7-29-16; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF STATE 48 CFR Parts 609 and 649 [Public Notice: 9599] RIN 1400-AD90 Department of State Acquisition Regulation AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    This rule adopts as final certain changes proposed to the Department of State Acquisition Regulation (DOSAR) to provide procedural changes relating to the suspension and debarment process.

    DATES:

    This rule is effective September 2, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone: 703-516-1685. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department of State published a Notice of Proposed Rulemaking (NPRM), Public Notice 9479 at 81 FR 17121, March 28, 2016, with a request for comments. A summary of the proposed changes and the reasons therefor were included in the NPRM. The comment period closed May 27, 2016. The Department did not receive any substantive comments on the rule. One correspondent raised matters that were not relevant to this rulemaking. The Department is now adopting the proposed rule as a final rule without change.

    Regulatory Findings Administrative Procedure Act

    In accordance with the provisions of the Administrative Procedure Act (APA) governing rules promulgated by federal agencies that affect the public (5 U.S.C. 552 and 553), the Department published this rulemaking as a proposed rule and invited public comment. In accordance with the APA, this rulemaking will be effective 30 days after publication.

    Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This determination was based on the fact that the changes proposed in this update have no impact on small businesses. The number of small businesses considered for suspension or debarment will not grow or shrink as a result of the proposed changes. The Department analyzed the suspension/debarment actions that occurred in FY14 and no small businesses were impacted.

    Unfunded Mandates 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 year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 801 et seq.). 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 import markets. This determination was based on the fact that the proposed changes are intended to simplify the procedural aspects of the suspension and debarment process. The rule does not place new requirements on contract performance. The rule does not have a significant cost or administrative impact on offerors or contractors.

    Executive Orders 12866 and 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). E.O. 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department of State does not consider this rule to be an “economically significant regulatory action” under Executive Order 12866. The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of updating this rule outweigh any costs, which the Department assesses to be minimal.

    Executive Order 13132

    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 require consultations or warrant the preparation of a federalism summary impact statement.

    Executive Order 13175

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

    Paperwork Reduction Act

    The rule imposes no new or revised information collections under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).

    List of Subjects in 48 CFR Parts 609 and 649

    Administrative practice and procedure, Government procurement.

    For the reasons stated in the preamble, the Department of State amends 48 CFR chapter 6 as follows:

    1. The authority citation for 48 CFR parts 609 and 649 continues to read as follows: Authority:

    22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1.

    PART 609—CONTRACTOR QUALIFICATIONS 2. Revise section 609.403-70 to read as follows:
    609.403-70 DOSAR definitions.

    Fact-finding official means the individual designated by the debarring official to conduct additional proceedings as necessary concerning disputed material facts.

    609.405-1 [Amended]
    3. In section 609.405-1, remove “609.405-70” and add in its place “649.101-70”.
    609.405-70 [Redesignated as 649.101-70 and Transferred]
    4. Redesignate section 609.405-70 as 649.101-70 and transfer newly redesiganted section 649.101-70 to part 649. 5. In section 609.406-3, revise paragraphs (a), (b)(2) through (7), (c)(2), and (d) to read as follows:
    609.406-3 Procedures.

    (a) Investigation and referral. (1) DOS employees aware of any cause that might serve as the basis for debarment shall refer those cases through the contracting officer to the debarring official. The debarring official shall refer to the Office of the Inspector General all reported cases that involve possible criminal or fraudulent activities for investigation by that office.

    (2) Referrals for consideration of debarment shall include, as appropriate and available—

    (i) The cause for debarment (see FAR 9.406-2);

    (ii) A statement of facts;

    (iii) Copies of supporting documentary evidence and a list of all necessary or probable witnesses, including addresses and telephone numbers, together with a statement concerning their availability to appear at a fact-finding proceeding and the subject matter of their testimony;

    (iv) A list of all contractors involved, either as principals or as affiliates, including current or last known home and business addresses and ZIP codes;

    (v) A statement of the acquisition history with such contractors;

    (vi) A statement concerning any known pertinent active or potential criminal investigation, criminal or civil court proceedings, or administrative claim before Boards of Contract Appeals; and

    (vii) A statement from each DOS organizational element affected by the debarment action as to the impact of a debarment on DOS programs.

    (3) As deemed appropriate, the debarring official may conduct investigations to supplement the information provided in the referral, or may request investigations by the Office of the Inspector General or other Department office.

    (b) * * *

    (2) In response to the debarment notice, if the contractor or its representative notifies the debarring official within 30 days after receipt of the notice that it wants to present information and arguments in person to the debarring official, that official, or a designee, shall chair such a meeting. The oral presentation shall be conducted informally and a transcript need not be made. However, the contractor may supplement its oral presentation with written information and arguments for inclusion in the administrative record.

    (3) Pursuant to FAR 9.406-3(b)(2), the contractor may request a fact-finding proceeding.

    (4) The debarring official shall designate a fact-finding official and shall provide the fact-finding official with a copy of all documentary evidence considered in proposing debarment. Upon receipt of such material, the fact-finding official shall notify the contractor and schedule a hearing date.

    (5) In addition to the purposes provided in FAR 9.406-3(b)(2), the hearing is intended to provide the debarring official with findings of fact based on a preponderance of evidence submitted to the fact-finding official and to provide the debarring official with a determination as to whether a cause for debarment exists, based on the facts as found.

    (6) The fact-finding proceeding shall be conducted in accordance with procedures determined by the fact-finding official. The rules shall be as informal as is practicable, consistent with FAR 9.406-3(b). The fact-finding official is responsible for making the transcribed record of the hearing, unless the contractor and the fact-finding official agree to waive the requirement for a transcript.

    (7) The fact-finding official shall deliver written findings and the transcribed record, if made, to the debarring official. The findings shall resolve any facts in dispute based on a preponderance of the evidence presented and recommend whether a cause for debarment exists.

    (c) * * *

    (2) When a determination is made to initiate action, the debarring official shall provide to the contractor and any specifically named affiliates written notice in accordance with FAR 9.406-3(c).

    (d) Debarring official's decision. In addition to complying with FAR 9.406-3(d) and (e), the debarring official shall provide single copies of the decision to each DOS organizational element affected by the decision.

    609.407-3 [Amended]
    6. In section 609.407-3: a. In paragraph (b)(2), remove the word “panel” and add in its place “official”. b. In paragraph (d), remove “and to the General Services Administration in accordance with 609.404”. PART 649—TERMINATION OF CONTRACTS 7. Add section 649.101 to read as follows:
    649.101 Authorities and responsibilities.
    649.101-70 [Amended]
    8. Revise the heading of newly redesignated section 649.101-70 to read as follows:
    649.101-70 Termination action decisions after debarment.
    Dated: July 22, 2016. Eric N. Moore, Acting, Procurement Executive, Department of State.
    [FR Doc. 2016-18280 Filed 8-2-16; 8:45 am] BILLING CODE 4710-24-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 216, 300, 600, and 660 [Docket No. 090223227-6560-03] RIN 0648-AX63 Trade Monitoring Procedures for Fishery Products; International Trade in Seafood; Permit Requirements for Importers and Exporters AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule sets forth regulations to revise procedures and requirements for filing import, export, and re-export documentation for certain fishery products to meet requirements for the SAFE Port Act of 2006, the Magnuson-Stevens Fishery Conservation and Management Act (MSA), other applicable statutes, and obligations that arise from U.S. participation in regional fishery management organizations (RFMOs) and other arrangements to which the United States is a member or contracting party. Specifically, NMFS sets forth regulations to integrate the collection of trade documentation within the government-wide International Trade Data System (ITDS) and require electronic information collection through the automated portal maintained by the Department of Homeland Security, Customs and Border Protection (CBP). Under this integration, NMFS will require annually renewable International Fisheries Trade Permits (IFTP) for the import, export, and re-export of certain regulated seafood commodities that are subject to trade monitoring programs of RFMOs and/or subject to trade documentation requirements under domestic law. These trade monitoring programs enable the United States to exclude products that do not meet the criteria for admissibility to U.S. markets, including products resulting from illegal, unregulated, and unreported (IUU) fishing activities. This final rule consolidates existing international trade permits for regulated seafood products under the Antarctic Marine Living Resources (AMLR) and Highly Migratory Species International Trade Permit (HMS ITP) programs and expands the scope of the permit requirement to include regulated seafood products under the Tuna Tracking and Verification Program (TTVP). This final rule also stipulates data and trade documentation for the above programs which must be provided electronically to CBP and addresses recordkeeping requirements for these programs in light of these changes. Trade documentation excludes any programmatic documents that are not required at the time of entry/export (e.g., biweekly dealer reports).

    DATES:

    This final rule is effective September 20, 2016, except for the revision to § 300.184, which is effective August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Rogers, Office for International Affairs and Seafood Inspection, NOAA Fisheries (phone 301-427-8350, or email [email protected]).

    SUPPLEMENTARY INFORMATION:

    Background

    The Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109-347) requires all Federal agencies with a role in import admissibility decisions to collect information electronically through the ITDS. The Department of the Treasury has the U.S. Government lead on ITDS development and Federal agency integration. CBP developed Automated Commercial Environment (ACE) as an internet-based system for the collection information for ITDS. The Office of Management and Budget (OMB), through its e-government initiative, oversees Federal agency participation in ITDS, with a focus on reducing duplicate reporting across agencies and migrating paper-based reporting systems to electronic information collection.

    The term ITDS refers to the integrated, government-wide project for the electronic collection, use, and dissemination of the international trade and transportation data Federal agencies need to perform their missions, while the term ACE refers to the “single window” system through which the trade community will submit data related to imports and exports. Detailed information on ITDS is available at: http://www.itds.gov.

    Numerous Federal agencies are involved in the regulation of international trade and many of these agencies participate in the import, export and transportation-related decision-making process. Agencies also use trade data to monitor and report on trade activity. NMFS is a partner government agency in the ITDS project because of its role in monitoring the trade of certain fishery products. Electronic collection of seafood trade data through a single portal will result in an overall reduction of the public reporting burden and the agency's data collection costs, will improve the timeliness and accuracy of admissibility decisions, and increase the effectiveness of applicable trade restrictive measures.

    On December 29, 2015, NMFS published a notice of proposed rulemaking for this action (80 FR 81251) to codify NMFS procedures for collecting information electronically through the ITDS. NMFS prepared a regulatory impact review of this action, which is available from NMFS (see FOR FURTHER INFORMATION CONTACT). This analysis describes the economic impact this action will have on the United States. Responses to public comments received on the proposed rule are set forth below.

    Changes From the Proposed Rule

    A number of changes from the proposed rule were made to clarify the regulatory text and to take account of other final rules affecting 50 CFR part 300 that became effective after the proposed rule for ITDS integration was published.

    Export Requirements

    Although the ITDS single window concept is built on the ACE platform as the reporting mechanism for the trade sector and the source for accessing trade data by the partner agencies, there is a distinction between reporting procedures for imports and exports. The system used to electronically transmit export filings is called the Automated Export System (AES). The primary document for instructing the trade sector on the data requirements for export filing is the Automated Export System Trade Interface Requirements (AESTIR). The primary instructional document for Partner Government Agency (PGA) export requirements is the “Appendix Q” to AESTIR. This document is comparable to the Customs and Trade Automated Interface Requirements (CATAIR) “Appendix PGA” for import transactions. While each PGA has issued a separate Implementation Guide for import requirements as a supplement to CATAIR, all guidance to the trade sector for PGA export requirements is detailed within the AESTIR Appendix Q documents.

    The CBP Web page that contains the primary information on export requirements is: https://www.cbp.gov/trade/aes. Details on how to submit export data via AES are available at: https://www.cbp.gov/trade/aes/aestir/introduction-and-guidelines. PGA record formats are listed at: https://www.cbp.gov/document/guidance/aestir-draft-appendix-q-pga-record-formats. The Appendix Q Record Lay Out Key details how each record required should be structured: https://www.cbp.gov/document/guidance/appendix-q-record-layout-key. NMFS has included references to the CBP import and export documentation in § 300.323 of the regulatory text.

    Electronic System for Atlantic Bluefin Tuna

    NMFS amended the regulatory text for the HMS ITP at 50 CFR 300.181 through 300.189 to reflect the implementation of the electronic bluefin tuna catch document program (81 FR 18796, April 1, 2016).

    Biweekly Reporting and Import Documentation for Bigeye Tuna

    NMFS amended 50 CFR 300.184 to address the exemption for bigeye tuna described in the Response to Comments section below under the heading “Bi-weekly Reporting.”

    Issuance of Permits Restricted to Residents

    NMFS amended 50 CFR part 300.322(a) to clarify that only resident agents in the United States are eligible to be issued the International Fisheries Trade Permit (IFTP). Entities that are not resident in the United States may obtain the IFTP only via a resident agent application.

    Entry Types Subject to Rule

    NMFS amended 50 CFR 300.322(a) and 300.323 to clarify the various transactions which pertain to seafood previously imported for purposes other than immediate consumption and for which the permitting, reporting and recordkeeping requirements apply.

    Exception to Low Value Exemptions

    NMFS revised 50 CFR 300.323 to clarify that all imports and exports of covered commodities, including shipments otherwise eligible for the de minimis value exemption, must be filed in ACE or AES, as applicable, in order to collect the NMFS-required information. NMFS also revised 50 CFR 300.324(b) to clarify that de minimis value imports (valued at $800 or less; see 19 U.S.C. 1321(a)(2)(C)) and exports (valued at $2500 or less; see 15 CFR 30.37(a) and 15 CFR 30.2(a)(iv)(F)) are subject to the prohibition on importing/exporting fish or fish products regulated under 50 CFR 300 subpart Q without a valid IFTP or without submitting complete and accurate information through ACE or AES, as applicable.

    Low value shipments are not exempt from statutory and regulatory requirements to collect information to support admissibility determinations and to report to the respective regional fishery management organizations on U.S. trade in fish products within the scope of each program. Under the SAFE Port Act, NMFS is required to collect information electronically and through the single window. Therefore, NMFS requires the use of ACE or AES, as applicable, to submit required information. However, CBP may provide other reporting mechanisms for different entry types and/or de minimis value shipments. If these alternative CBP mechanisms can collect all of the NMFS-required information and transmit that information to NMFS, importers and exporters may use these mechanisms to fulfill NMFS reporting requirements.

    Redesignation of 50 CFR part 300 Subpart Q

    In publishing the proposed rule for ITDS integration of current trade monitoring programs, NMFS incorrectly numbered the sections of the proposed new subpart R to 50 CFR part 300. A final rule amending regulations implementing the High Seas Fishing Compliance Act (HSFCA) was published on October 16, 2015 (80 FR 62488). That final rule added a new subpart Q to 50 CFR part 300, with sections numbered §§ 300.330 through 300.341. In subsequently proposing a new Subpart R for the ITDS integration regulations, NMFS numbered sections from 300.320 through 300.324.

    In order to maintain the correct sequence of section numbers, NMFS is now redesignating existing subpart Q as new subpart R. This final rule then inserts a new subpart Q for the ITDS regulations with sections numbered in the correct order. Given the placement of HSFCA regulations in the new subpart R, conforming amendments are needed for cross-references to HSFCA requirements which exist in 50 CFR 600.705 and 50 CFR 660.2.

    Responses to Public Comments

    NMFS received 12 public comments on the proposed rule. Comments were received from the National Customs Brokers and Forwarders Association of America (NCBFAA), Traffic/World Wildlife Fund/Oceana, Bumble Bee Seafoods, Tri Marine Management Company LLC, and two individuals potentially affected by new requirements in this rule.

    Data Elements

    Comment 1: NCBFAA noted that although the data submission requirements under the proposed rule are not new, this data has not previously been required to be submitted at the time of entry/release. They noted that submitting data at the time of entry/release not only increases processing costs for the importer, but also raises the potential for disruptions as the data moves through the ACE pipeline to CBP and NMFS. NCBFAA questioned the need for NMFS to collect all data elements at the time of entry/release and asked whether NMFS' requirements could be met if the information was provided via the entry summary which may be filed electronically within 10 days after entry/release. NCBFAA noted that moving these data submission requirements to entry summary would provide much needed flexibility for importers and customs brokers to handle complex entries without slowing down trade and would suit NMFS needs because NMFS would not be able to review data until after entry/release.

    Response: NMFS believes that submission of data at the time of entry/release is necessary to ensure only admissible products are permitted entry into the U.S. market. Allowing data entry for these three programs after product has been admitted into the United States would make efforts to interdict problematic entries extremely difficult. NMFS also emphasizes that it is only requiring the minimum amount of data necessary to determine whether a product is admissible at the time of entry be provided as a data set at the time of entry. This approach should expedite the release of product associated with the three NMFS trade monitoring programs.

    Permits and the Importer of Record

    Comment 2: NCBFAA noted it does not object to consolidating the existing trade permits as proposed in the rule; however they noted that in some instances, particularly along land borders, customs brokers serve as the importer of record. NCBFAA stated its view that the IFTP should not be required for an importer of record who is not a beneficial party in interest, such as a customs broker. NCBFAA therefore suggested the rule be modified to clarify that the permit obligation, and associated recordkeeping and reporting requirements, belong to the “beneficial party in interest” which should be defined as a party with a financial interest in the imported goods such as the owner, purchaser, or distributor of the merchandise.

    Response: NMFS believes it is important for enforcement purposes that the importer of record, regardless of whether said importer has a direct financial interest in the imported goods, be the responsible party accountable in the event of a shipment entry problem. Thus, the IFTP obligation and associated recordkeeping and reporting requirements in this rule will reside with the importer of record. Related to this, NMFS clarifies that entities not resident in the United States are ineligible to apply for the IFTP. Nonresident importers must have a U.S. resident agent apply for the IFTP and have the customs broker provide the resident agent's permit number in the entry data. NMFS has clarified the regulatory text at 50 CFR 300.322(a) accordingly.

    “De Minimis” Levels and Informal Entries

    Comment 3: NCBFAA noted that the rule does not address NMFS requirements with regard to Informal Entries (valued at $2,500) or Section 321 entries (shipments of “de minimis value”, increased from $200 to $800 by Section 601 of the Trade Facilitation and Trade Enforcement Act, Pub. L. 114-376). NCBFAA noted that with the de minimis threshold raised to $800, the practice of breaking commercial shipments into lower-value increments will likewise increase, in effect allowing these imports to bypass the more formalized requirements of entry processing. NCBFAA stated its view that NMFS needs to address how it will meet this contingency.

    Response: NMFS' requirement with regard to Informal Entries will be the same as those for all other entries, namely all entries associated with the HTS codes corresponding to the three seafood import monitoring programs will need to supply message sets and documentation into ACE via the Document Imaging System (DIS). Similarly, de minimis shipments corresponding to the relevant HTS codes which are valued at less than $800 will also need to supply message sets and documentation into ACE via the DIS to ensure that no inadmissible products are granted entry into the U.S. market. NMFS therefore revised 50 CFR 300.323 to clarify that all imports and exports of covered commodities, including shipments otherwise eligible for the de minimis value exemption, must be filed in ACE or AES, as applicable, in order to collect the NMFS-required information. NMFS also revised 50 CFR 300.324(b) to clarify that de minimis value imports are also subject to the prohibition on importing fish or fish products regulated under 50 CFR part 300 subpart Q without a valid IFTP or without submitting complete and accurate information. Likewise, low value exports are subject to AES filing to meet the NMFS requirements for permitting and reporting (see 15 CFR 30.2(a)(iv)(F)). However, NMFS has made provisions for cases where CBP reporting alternatives can capture and transmit the NMFS-required information without a formal entry or export filing in ACE or AES, as applicable.

    Technical Language

    Comment 4: NCBFAA noted that the proposed regulatory text at §§ 300.322(a) and 300.323 refers to persons who import “for consumption or non-consumption.” NCBFAA noted that the term “import for consumption” has a very specific legal meaning under customs law, whereas, the term “import for non-consumption” has no particular meaning under customs law. NCBFAA therefore suggested that commonly used customs terms be used to clarify the application of the proposed rule.

    Response: NMFS agrees that the term “import for non-consumption” should be clarified and has therefore amended the regulatory text at §§ 300.322(a) and 300.323 to specify the various transactions which pertain to seafood previously imported for purposes other than immediate consumption, e.g. withdrawal from a foreign trade zone or bonded warehouse for entry into U.S. commerce.

    Elimination of Paper-Based Documentation

    Comment 5: Traffic et al. conveyed its understanding that in the initial phases of ITDS implementation, document image scans will be used to transmit the catch documentation forms. Traffic et al. stated its view that the key goal must be to eventually move away from paper-based documentation, including imaged documents, to truly electronic data. Traffic et al. stated its hope that NMFS, in conjunction with CBP, will put in place systems to receive all information in a truly electronic format, at least before the implementation date of the proposed seafood import monitoring program or at some set time thereafter, noting that the value of this system, in terms of real-time verification and compliance risk assessment, cannot be achieved without that change.

    Response: Many of the paper-based catch documentation forms referenced in this comment are created by regional fishery management organizations (RFMOs) or arrangements that are comprised of different member countries including the United States. ITDS therefore cannot be made fully electronic until action in this direction is taken by the relevant RFMOs or arrangements. For example, the TTVP requires certification from tuna captains from all over the world, including many that fish in remote artisanal fisheries where Internet connectivity is not commonplace, even today. Having said that, however, NMFS agrees it is important to move to a fully electronic system as soon as the relevant international catch documentation schemes go electronic. NMFS notes that the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and the International Convention for the Conservation of Atlantic Tunas (ICCAT) have moved in the direction of electronic catch documentation systems which have simplified import/export processes for the trade and NMFS expects this trend in other organizations in the future.

    Need for Capacity Development

    Comment 6: Traffic et al. noted its view that capacity building to assist some countries with implementing the new rules will be necessary. Traffic et al. noted its hope that NMFS, USAID, the State Department and other agencies will be able to work with countries to help develop electronic reporting systems that can produce the information needed at the point of catch and feed into traceability systems that will follow the product throughout the supply chain.

    Response: NMFS agrees and is taking steps to do this. For example, NMFS is working with the Department of State and USAID on a Regional Development Mission Asia project in Southeast Asia to enhance seafood traceability infrastructure among the developing countries of this region.

    Need To Apply Traceability to All Species

    Comment 7: Traffic et al. noted its view that similar requirements for electronic submission of catch documentation eventually be applied to all species to effectively combat fraud and the flow of IUU products.

    Response: Although not germane to this rule, NMFS agrees (as noted in the Seafood Import Monitoring Program proposed rule published in the Federal Register on February 5, 2016) that seafood traceability requirements should eventually be applied to all species in an effort to combat seafood fraud and IUU fishing. As noted in the March 2015 Presidential Task Force report, the National Oceans Committee will issue a report by December 2016 that includes an evaluation of the program as implemented to date as well as recommendations of how and under what timeframe it would be expanded.

    TTVP “Reduced Data Set” Reporting

    Comment 8: Bumble Bee noted that the proposed rule includes provisions for the submission of a “reduced data set” for domestic canners who import frozen tuna loins with the stated objective of preventing duplicative report for companies that submit monthly reports associated with the TTVP. Bumble Bee further noted that the recently released Seafood Import Monitoring Program proposed rule also references collection of data via a “NMFS message set” but the content, specific format, and timing to begin reporting of both the “reduced data set” and the “NMFS message set” appear to not yet be defined. Bumble Bee urged that the rollout of the “reduced data set” reporting proposed in the ITDS implementation rule not be implemented prior to the rollout of the “NMFS Message Set” reporting requirement in the Seafood Import Monitoring Program proposed rule and that NMFS ensures that content and data serve both purposes. Bumble Bee stated its view that implementing a “reduced data set” reporting requirement under the ITDS implementation rule to meet the needs of the TTVP and then implementing another data requirement shortly thereafter to meet traceability reporting requirements seems wasteful and will create additional burden on the trade.

    Response: As noted in the NMFS ITDS implementation guidelines (see http://www.cbp.gov/sites/default/files/documents/ACE%20NMFS%20PGA%20MS%20Guidelines%20-%20July%2022%202015.pdf), for cannery processed products that are imported into the U.S. Customs District from American Samoa and for imports of frozen cooked tuna loins, not in airtight containers, not in oil and with contents over 6.8 kilograms from any country of origin, certain data usually or otherwise required at the time of filing need not be submitted if provided to NMFS under the regulations found at 50 CFR 216.93(d)(2). Under these specific conditions, NMFS will only require a “reduced data set” consisting of an acknowledgement that an electronic image is associated with the shipment and also that the document images of the NOAA Form 370(s) associated with the shipment have been uploaded into the CBP DIS. Given the different timelines for implementation of these two regulations, it will not be possible to implement requirements simultaneously; however, NMFS will make every effort to avoid creating additional burdens on the trade in the course of implementing these programs.

    Bi-Weekly Reporting Requirements

    Comment 9: Bumble Bee stated its understanding that under the proposed rule, companies who are part of the TTVP would now need to obtain an IFTP. Bumble Bee does not object to this requirement, but noted that in the reporting and recordkeeping requirements in section 300.183 of the proposed rule that biweekly reporting is required for holders of the IFTP. Bumble Bee requested confirmation that the existing bi-weekly reporting requirements associated with the IFTP will remain limited to species currently part of the HMS ITP with the existing reporting exemption for bigeye tuna destined for canneries.

    Response: NMFS confirms that the import documentation requirements, as well as the bi-weekly reporting requirements, associated with the HMS ITP will remain limited to species currently part of that program. The reporting exemption for bigeye tuna destined for canneries harvested by either purse seiners or pole and line (bait) vessels will continue. The regulations pertaining to this exemption were inadvertently removed during a previous rulemaking (77 FR 52259, August 29, 2012) and have been restored in the regulatory text at 50 CFR 300.184. NMFS would also like to clarify that under this rule, documentation such as the HMS ITP biweekly dealer reports, which are not required at the time of entry/export, will continue to be provided to the HMS ITP office and are not submitted to CBP via the ACE portal.

    Administrative/Financial Burdens Imposed by Rule

    Comment 10: Tri Marine voiced its concern about the administrative and financial burden the proposed rule may pose and that this aspect was not adequately addressed in the Regulatory Flexibility Act section of the proposed rule. Tri Marine noted that direct and indirect costs associated with new requirements under the rule are difficult to determine at this time and that the primary beneficiary of the efficiencies gained would be U.S. government agencies and companies that also trade in non-TTVP species/products. Tri Marine encouraged NMFS to reconsider options that best mitigate potential economic impacts to industries that trade exclusively in TTVP species while still achieving desired outcomes. Tri Marine agrees TTVP companies should be required to obtain the IFTP, but without a fee and with minimal filing burden. Tri Marine suggested updated templates for the NOAA 370 form and Captain's Statements should be designed that readily integrate into ACE. Tri Marine noted information required should always include the market name and scientific names of all species used in the product, not only simplified names such as light meat tuna that can mask the actual inputs used. Tri Marine encouraged NMFS to engage with the FDA to change the standard of identity for canned tuna to require the species name of all inputs be provided on canned tuna labels.

    Response: In determining its preferred alternative for this rulemaking, NMFS made best efforts to balance potential economic impacts on the trade with the rulemaking's desired outcomes. NMFS believes extending the IFTP requirement to TTVP-related companies to be both the most equitable and effective alternative among those presented in the proposed rule. The cost of the IFTP is only $30 and is calculated solely based upon the administrative cost to NMFS of issuing the permit. Requiring the permit for all three programs also allows NMFS to easily notify permit holders of any changes to the relevant regulations or import monitoring program procedures. NMFS appreciates the suggestion to update templates for the TTVP 370 form and Captain's Statements for improved integration with ACE and will work with CBP to consider this suggestion further. Although the comment regarding market and scientific names is outside the scope of this rulemaking, this issue has been discussed by NMFS, the FDA, and other agencies in response to Recommendation 10 of the Presidential Task Force to Combat IUU Fishing and Seafood Fraud. (See www.iuufishing.noaa.gov).

    Import Data for Frozen Cooked Tuna Loins and Tuna in Airtight Containers

    Comment 11: Tri Marine recognized the proposed rule allows for a reduced data set for imports of 1) frozen cooked tuna loins used in cannery operations and 2) tuna products in airtight containers manufactured in American Samoa. Although Tri Marine agreed with the intent to prevent duplicative reporting and apply this to imports from American Samoa, it opposed reduced data collection from frozen loin importers. Tri Marine noted that tuna cans from American Samoa are typically produced from fish delivered directly to canneries from the fishing vessel allowing direct traceability from the vessel to processing line to finished product. Tuna loins imported into the United States, however, are typically caught in distant waters, transshipped onto carrier vessels, offloaded into foreign ports, trucked to large cold stores, transferred to foreign processing facilities and then shipped by container vessel to the United States where they are stored and undergo final secondary processing, all of which makes traceability more challenging. Tri Marine therefore recommends more rigorous data sets be required for imported tuna loins.

    Response: These comments are germane to the chain of custody requirements proposed under the Seafood Import Monitoring Program (81 FR 6210) rather than under this ITDS implementation rule. However, NMFS notes that the reduced data set applies to all U.S. tuna canning facilities in order to reduce duplication of data elements required under 50 CFR 219.93(d)(2). NMFS will take these comments into consideration when formulating its final rule for the Seafood Import Monitoring Program.

    Overlap With Proposed Seafood Import Monitoring Program

    Comment 12: Tri Marine stated its view that there is significant overlap between the ITDS implementation proposed rule and the proposed rule for the Seafood Import Monitoring Program. Tri Marine's view is that since it is highly likely that comments on the Seafood Import Monitoring Program will be useful in guiding the development of a final rule for ITDS implementation, it would be prudent to integrate the final rule for these two initiatives, taking into account comments on both proposed rules.

    Response: Although NMFS recognizes there is overlap between the two rules, it will not be possible to integrate the two rules primarily because they have different timelines for implementation with NMFS implementation of ITDS required by July 23, 2016, in order to meet the requirements specified for all Federal agencies in Executive Order 13659 (Streamlining the Export/Import Process) whereas implementation of the Seafood Import Monitoring Program is not expected to occur until the fall of 2016 at the earliest.

    Classification

    This rule is published under the authority of AMLRCA of 1984, 16 U.S.C. 2431 et seq.; ATCA of 1975, 16 U.S.C. 971 et seq.; TCA of 1950, 16 U.S.C. 951-961; MSA, 16 U.S.C. 1801 et seq.; MMPA of 1972, 16 U.S.C. 1361-1407; DPCIA, 16 U.S.C. 1385; HSDFMPA, 16 U.S.C. 1826d-k; and HSDFEA, 16 U.S.C. 1826a-c. Other relevant authorities include the Pelly Amendment to the Fishermen's Protective Act, 22 U.S.C. 1978, and the Lacey Act, 16 U.S.C. 3371.

    The NMFS Assistant Administrator has determined that this final rule is consistent with the provisions of these and other applicable laws.

    This final rule has been determined to be not significant for the purposes of Executive Order 12866.

    Administrative Procedure Act

    As explained above, this final rule revises text at 50 CFR 300.184 that provides an exemption from documentation requirements for bigeye tuna destined for canneries. Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this specific provision of the final rule, because notice and comment would be unnecessary and contrary to the public interest. This text was inadvertently removed in an August 29, 2012 final rule (77 FR 52259), and NMFS only became aware of that fact as it was reviewing and responding to public comments on this current rulemaking. Providing for public comment at this time is unnecessary and contrary to the public interest, as NMFS and industry have been operating as if the exemption remained in place. Further, NMFS never intended to change the exemption and thus never analyzed its removal. Because this aspect of the rule relieves a restriction by reinserting an exemption to documentation requirements, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1).

    Regulatory Flexibility Act

    The Chief Counsel for Regulations certified that this rule is not expected to have a significant economic impact on a substantial number of U.S. small entities (80 FR 81255, December 29, 2015).

    Although a new IFTP will be established for the import, export or re-export of regulated products under the AMLR, HMS ITP and TTVP programs, this new permit generally represents a consolidation of information contained in existing permits and should actually result in fewer reporting or recordkeeping requirements. Data sets to be entered electronically to determine product admissibility are already required to be submitted in paper form under the respective trade programs. Thus, NMFS anticipates that U.S. entities will not be significantly affected by this action because it generally does not pose new or additional burdens with regard to the collection and submission of information necessary to determine product admissibility.

    With regard to the possible economic effects of this action, per the response to Question 13 of the supporting statement prepared for the Paperwork Reduction Act analysis (available from www.reginfo.gov/public/do/PRAMain), NMFS estimates there will be 751 applicants for the new IFTP with an estimated net increase in annual costs of $16,255 for obtaining those permits, based on the combined number of permit holders and respondents under NMFS' existing trade monitoring programs. Although NMFS does not have access to data about the business sizes of importers and receivers that would be impacted by this rule, it is likely that the majority may be classified as small entities. However, when overall total new burdens for the three requirements under this rule (IFTP, data set submission, and admissibility document(s) submission) are compared to current burdens, the new consolidated burdens are estimated to result in an overall net burden decrease of 4,225 hours and $63,650. A no-action alternative, where NMFS would not promulgate the rule, was not considered as all applicable U.S. government agencies are required to implement ITDS under the authority of section 405 of the SAFE Port Act and Executive Order 13659 on Streamlining the Export/Import Process, dated February 19, 2014.

    This action will not affect the volume of seafood trade or alter trade flows in the U.S. market. Although the rule will require traders under the TTVP to obtain an IFTP, which they are not currently required to do, NMFS expects that the consolidated IFTP will have no impact on, or will actually reduce, the overall administrative burden on the public; those parties currently required to obtain two separate permits under the AMLR and HMS ITP programs will be required to obtain only one consolidated permit under this rule.

    The consolidated permitting and electronic reporting program established under this rulemaking will not have significant adverse or long-term economic impacts on small U.S. entities. This rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules. Thus, the requirements and prohibitions in the rule will not have a significant economic impact on a substantial number of small entities. Consequently, a regulatory flexibility analysis is not required and none has been prepared.

    Paperwork Reduction Act

    This rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under control number 0648-0732. When new reporting burdens for the three electronic reporting requirements under this rule (IFTP, data set submission, and admissibility document submission) are compared to current reporting burdens approved for the separate paper-based programs, it is estimated to result in an overall net burden decrease of 4,225 hours and $63,650.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    List of Subjects 50 CFR Part 216

    Administrative practice and procedure, Exports, Fish, Imports, Indians, Labeling, Marine mammals.

    50 CFR Part 300

    Administrative practice and procedure, Antarctica, Canada, Exports, Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, Reporting and recordkeeping requirements, Russian Federation, Transportation, Treaties, Wildlife.

    50 CFR Part 600

    Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing regulations, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.

    50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

    Dated: July 27, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 216, 300, 600, and 660 are amended as follows:

    PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: Authority:

    16 U.S.C. 1361 et. seq., unless otherwise noted.

    2. In § 216.24, revise paragraphs (f)(2) introductory text, (f)(2)(i)(A) and (D), (f)(2)(ii)(A) and (D), (f)(2)(iii)(A) through (C), (f)(3) introductory text, and (f)(3)(i) through (iii) to read as follows:
    § 216.24 Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.

    (f) * * *

    (2) Imports requiring a Fisheries Certificate of Origin and an International Fisheries Trade Permit. Shipments of tuna, tuna products, and certain other fish products identified in paragraphs (f)(2)(i) through (iii) of this section may not be imported into the United States unless: a scanned copy of a properly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, associated certifications and statements described in § 216.91(a), and required data set are filed electronically with U.S. Customs and Border Protection (CBP) at the time of, or in advance of, importation as required under § 300.323; and the importer of record designated on the entry summary (Customs Form 7501) holds a valid International Fisheries Trade Permit as specified at § 300.322 of this title. “Required data set” has the same meaning as § 300.321 of this title (see definition of “Documentation and data sets required”).

    (i) * * *

    (A) Frozen: (products containing Yellowfin).

    0303.42.0020 Yellowfin tunas, whole, frozen 0303.42.0040 Yellowfin tunas, head-on, frozen, except whole 0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on, fillets, livers and roes 0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or indicated (NESOI) 0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each

    (D) Other: (products containing Yellowfin).

    0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight containers

    (ii) * * *

    (A) Frozen: (other than Yellowfin).

    0303.41.0000 Albacore or longfinned tunas, frozen, except fillets, livers and roes 0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except fillets, livers and roes 0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes 0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes 0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes 0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and roes 0303.49.0200 Tunas, frozen, except fillets, livers and roes, NESOI 0304.87.0000 Tuna fish fillets, frozen, NESOI 0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each, NESOI

    (D) Other: (only if the product contains tuna).

    0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight containers

    (iii) * * *

    (A) Frozen:

    0303.11.0000 Sockeye (red) salmon (Oncorhynchus nerka), frozen, except fillets, livers and roes 0303.12.0012 Chinook (King) salmon (Oncorhynchus tschawytscha), frozen, except fillets, livers and roes 0303.12.0022 Chum (dog) salmon (Oncorhynchus keta), frozen, except fillets, livers and roes 0303.12.0032 Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen, except fillets, livers and roes 0303.12.0052 Coho (silver) salmon (Oncorhynchus kisutch), frozen, except fillets, livers and roes 0303.12.0062 Pacific salmon (Oncorhynchus masou, Oncorhynchus rhodurus), frozen, except fillets, livers and roes, NESOI 0303.13.0000 Atlantic salmon (Salmo salar) and Danube salmon (Hucho hucho), frozen, except fillets, livers and roes 0303.14.0000 Trout (Salmo trutta; Oncorhynchus mykiss, clarki, aguabonita, gilae, apache, and chrysogaster), frozen, except fillets, livers and roes 0303.19.0100 Salmonidae, frozen, except fillets, livers and roes, NESOI 0303.57.0010 Swordfish steaks, frozen, except fillets 0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes 0303.81.0010 Dogfish (Squalus spp.), frozen, except fillets, livers and roes 0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes 0303.89.0079 Fish, other, frozen, except fillets, livers and roes, NESOI 0304.81.5010 Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI 0304.81.5090 Salmonidae fillets, frozen, except Atlantic salmon, NESOI 0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg each, to be minced, ground or cut into pieces of uniform weights and dimensions, NESOI 0304.91.1000 Swordfish, frozen, in bulk or in immediate containers weighing over 6.8 kg each 0304.91.9000 Swordfish, frozen, NESOI 0304.99.9191 Fish fillets, ocean, frozen, NESOI 0307.49.0010 Squid fillets, frozen 0307.49.0022 Squid, Loligo opalescens, NESOI 0307.49.0024 Squid, Loligo pealei, NESOI 0307.49.0029 Squid, Loligo, other, NESOI 0307.49.0050 Squid, other, NESOI

    (B) Canned:

    1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.4010 Chum (dog) salmon, not in oil, canned 1604.11.4020 Pink (humpie) salmon, not in oil, canned 1604.11.4030 Sockeye (red) salmon, not in oil, canned 1604.11.4040 Salmon, NESOI, not in oil, canned 1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI 1604.19.2100 Fish, NESOI, not in oil, in airtight containers 1604.19.3100 Fish, NESOI, in oil, in airtight containers 1605.54.6020 Squid, Loligo, prepared or preserved 1605.54.6030 Squid, except Loligo, prepared or preserved

    (C) Other:

    0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked, NESOI 0305.41.0000 Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo salar), and Danube salmon (Hucho hucho), including fillets, smoked 0305.49.4041 Fish including fillets, smoked, NESOI 0305.59.0000 Fish, dried, whether or not salted but not smoked, NESOI 0305.69.4000 Salmon, salted but not dried or smoked; in brine 0305.69.5001 Fish in immediate containers weighing with their contents 6.8 kg or less each, salted but not dried or smoked; in brine, NESOI 0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI 0305.71.0000 Shark fins, dried, whether or not salted but not smoked 0305.49.0010 Squid, frozen, fillets 0307.49.0022 Squid, Loligo opalescens, frozen (except fillets), dried, salted or in brine 0307.49.0024 Squid, Loligo pealei, frozen (except fillets), dried, salted or in brine 0307.49.0029 Squid, Loligo, frozen (except fillets), dried, salted or in brine, NESOI 0307.49.0050 Squid, other, frozen (except fillets), dried, salted or in brine, except Loligo squid 0307.49.0060 Cuttle fish (Sepia officinalis, Rossia macrosoma, Sepiola spp.), frozen, dried, salted or in brine

    (3) Disposition of Fisheries Certificates of Origin. The FCO described in paragraph (f)(4) of this section may be obtained from the Administrator, West Coast Region, or downloaded from the Internet at http://www.nmfs.noaa.gov/pr/dolphinsafe/noaa370.htm.

    (i) A properly completed FCO, and its attached certifications and statements as described in § 216.91(a), must accompany the required CBP entry documents that are filed at the time of, or in advance of, importation.

    (ii) FCOs and associated certifications and statements as described in § 216.91(a) must be provided electronically to CBP as indicated in paragraph (f)(2) of this section.

    (iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, West Coast Region, by the last endorser when all required endorsements are completed. Such FCOs must be submitted as specified in § 216.93(d)(2).

    3. In § 216.93, revise paragraphs (f) and (g)(2) to read as follows:
    § 216.93 Tracking and verification program.

    (f) Tracking imports. All tuna products, except fresh tuna, that are imported into the United States must be accompanied as described in § 216.24(f)(3) by a properly certified FCO as required by § 216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated certifications and statements must be submitted by the importer of record to U.S. Customs and Border Protection as described in and required by § 216.24(f)(2).

    (g) * * *

    (2) Record submission. At the time of, or in advance of, importation of a shipment of tuna or tuna products, any importer of tuna or tuna products must submit all corresponding FCOs and required certifications and statements for those tuna or tuna products as required by § 216.24(f)(2).

    PART 300—INTERNATIONAL FISHERIES REGULATIONS 4. The authority citation for part 300 continues to read as follows: Authority:

    16 U.S.C. 951 et seq.; 16 U.S.C. 1801 et seq.; 16 U.S.C. 5501 et seq.; 16 U.S.C. 2431 et seq.; 31 U.S.C. 9701 et seq.

    5. In § 300.4: a. Revise paragraph (o); b. Redesignate paragraphs (p) and (q) as (q) and (r); and c. Add a new paragraph (p).

    The revision and addition read as follows:

    § 300.4 General prohibitions.

    (o) Ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish imported, exported or re-exported in violation of this part.

    (p) Import, export, or re-export any fish regulated under this part without a valid International Fisheries Trade Permit as required under § 300.322 or applicable shipment documentation as required under § 300.323.

    6. In § 300.107, revise paragraphs (b) introductory text, (b)(1) and (3), (c)(6)(i)(A)(5), and (c)(7)(i)(A)(4) to read as follows:
    § 300.107 Reporting and recordkeeping requirements.

    (b) Dealers. Dealers of AMLR required under § 300.114 to have an International Fisheries Trade Permit (IFTP) issued under § 300.322 must:

    (1) Accurately maintain all reports and records required by their IFTP and this subpart;

    (3) Within the time specified in the IFTP requirements, submit a copy of such reports and records to NMFS at an address designated by NMFS.

    (c) * * *

    (6) * * *

    (i) * * *

    (A) * * *

    (5) The dealer/exporter's name, address, and IFTP number; and

    (7) * * *

    (i) * * *

    (A) * * *

    (4) The dealer/exporter's name, address, and IFTP permit number;

    7. In § 300.114: a. Revise paragraphs (a)(1), (2), and (4), (b), (d) through (f), (g)(1) and (2), (h), and (j); and b. Remove paragraph (k).

    The revisions read as follows:

    § 300.114 Dealer permits and preapproval.

    (a) * * *

    (1) A dealer importing, or re-exporting AMLR, or a person exporting AMLR, must possess a valid IFTP issued under § 300.322 and file, as specified under § 300.323, the required data sets electronically with CBP at the time of, or in advance of importation or exportation. Required data set has the same meaning as § 300.321 (see definition of “Documentation and data sets required.”) See § 300.322 for IFTP application procedures and permit regulations. The IFTP holder may only conduct those specific activities stipulated by the IFTP. Preapproval from NMFS is required for each shipment of frozen Dissostichus species.

    (2) An AMLR may be imported into the United States if its harvest has been authorized by a U.S.-issued individual permit or its importation has been authorized by an IFTP and, in the case of frozen Dissostichus species, preapproval issued under § 300.114(a)(1). AMLRs may not be released for entry into the United States unless accompanied by the harvesting permit, the individual permit, or IFTP and, in the case of frozen Dissostichus species, the preapproval certification granted by NMFS to allow import. NMFS will only accept electronic catch documents for toothfish imports.

    (4) An IFTP or preapproval issued under this section does not authorize the harvest or transshipment of any AMLR by or to a vessel of the United States.

    (b) Application. Application forms for preapproval are available from NMFS. * * *

    (d) Issuance. NMFS may issue a preapproval if it determines that the activity proposed by the dealer meets the requirements of the Act and that the resources were not or will not be harvested in violation of any CCAMLR conservation measure in force with respect to the United States or in violation of any regulation in this subpart. * * *

    (e) Duration. A preapproval is valid until the product is imported. Each export or re-export document created by NMFS in the CDS is valid only for that particular shipment.

    (f) Transfer. A preapproval issued under this section is not transferable or assignable.

    (g) * * *

    (1) Pending applications. Applicants for preapproval under this section must report in writing to NMFS any change in the information submitted in preapproval applications. * * *

    (2) Issued preapprovals. Any entity issued a preapproval under this section must report in writing to NMFS any changes in previously submitted information. * * *

    (h) Revision, suspension, or revocation. A preapproval issued under this section may be revised, suspended, or revoked, based upon a violation of the IFTP, the Act, or this subpart. Failure to report a change in the information contained in a preapproval application voids the application or preapproval. Title 15 CFR part 904 governs sanctions under this subpart.

    (j) SVDCD. Preapprovals will not be issued for Dissostichus spp. offered for sale or other disposition under a Specially Validated DCD.

    8. In § 300.117, revise paragraphs (b) and (r) and add paragraph (ii) to read as follows:
    § 300.117 Prohibitions.

    (b) Import into, or export or re-export from, the United States any AMLRs without applicable catch documentation as required by § 300.107(c), without an IFTP as required by § 300.114(a)(1), or in violation of the terms and conditions for such import, export or re-export as specified on the IFTP.

    (r) Without a valid first receiver permit issued under this subpart, receive AMLRs from a vessel or receive AMLRs from a vessel without a valid harvesting permit issued under this subpart.

    (ii) Import into, or export or re-export from, the United States any AMLRs harvest by a vessel of the United States without a valid harvesting permit issued under this subpart.

    9. In § 300.181: a. Add in alphabetical order definitions for “Automated Commercial Environment (ACE)” and “Automated Export System (AES)”; b. Revise the definition for “CBP”; c. Add in alphabetical order definitions for “Document Imaging System (DIS)” and “International Fisheries Trade Permit (IFTP) or trade permit”; d. Revise the definition for “Permit holder”; e. Add in alphabetical order a definition for “Required data set”; and f. Remove the definition for “Trade Permit”.

    The additions and revisions read as follows:

    § 300.181 Definitions.

    Automated Commercial Environment (ACE) has the same meaning as that term is defined in § 300.321 of this part.

    Automated Export System (AES) has the same meaning as that term is defined in § 300.321 of this part.

    CBP means U.S. Customs and Border Protection, Department of Homeland Security.

    Document Imaging System (DIS) means the system established by CBP to receive image files of paper documents in ACE or AES and associate the image files with specific trade transactions.

    International Fisheries Trade Permit (IFTP) or trade permit means the permit issued by NMFS under § 300.322.

    Permit holder, for purposes of this subpart, means, unless otherwise specified, a person who is required to obtain an International Fisheries Trade Permit (IFTP) under § 300.322.

    Required data set has the same meaning as § 300.321 (see definition of “Documentation and data sets required”).

    10. Section 300.182 is revised to read as follows:
    § 300.182 International fisheries trade permit.

    An importer, entering for consumption any fish or fish products regulated under this subpart, harvested from any ocean area, into the United States, or an exporter exporting or re-exporting such product, must possess a valid International Fisheries Trade Permit (IFTP) issued under § 300.322.

    11. In § 300.183, revise paragraphs (a) introductory text, (a)(3), and (b) through (e) to read as follows:
    § 300.183 Permit holder reporting and recordkeeping requirements.

    (a) Biweekly reports. Any person trading fish and fish products regulated under this subpart and required to obtain a trade permit under § 300.322 must submit to NMFS, on forms supplied by NMFS, a biweekly report of entries for consumption, exports and re-exports of fish and fish products regulated under this subpart, except shark fins.

    (3) A biweekly report is not required for export consignments of bluefin tuna when the information required on the biweekly report has been previously supplied on a biweekly report submitted under § 635.5(b)(2)(i)(B) of this title. The person required to obtain a trade permit under § 300.322 must retain, at his/her principal place of business, a copy of the biweekly report which includes the required information and is submitted under § 635.5(b)(2)(i)(B) of this title, for a period of 2 years from the date on which each report was submitted to NMFS.

    (b) Recordkeeping. Any person trading fish and fish products regulated under this subpart and required to submit biweekly reports under paragraph (a) of this section must retain, at his/her principal place of business, a copy of each biweekly report and all supporting records for a period of 2 years from the date on which each report was submitted to NMFS.

    (c) Other requirements. Any person trading fish and fish products regulated under this subpart and required to obtain a trade permit under § 300.322 is also subject to the reporting and recordkeeping requirements identified in § 300.185.

    (d) Inspection. Any person authorized to carry out the enforcement activities under the regulations in this subpart (authorized person) has the authority, without warrant or other process, to inspect, at any reasonable time: fish or fish products regulated under this subpart, biweekly reports, statistical documents, catch documents, re-export certificates, relevant sales receipts, import and export documentation, and any other records or reports made, retained, or submitted pursuant to this subpart. A permit holder must allow NMFS or an authorized person to inspect any fish or fish products regulated under this subpart, and inspect and copy any import export, and re-export documentation and any reports required under this subpart, and the records, in any form, on which the completed reports are based, wherever they exist. Any agent of a person trading and required to obtain a trade permit under § 300.322, or anyone responsible for importing, exporting, re-exporting, storing, packing, or selling fish or fish products regulated under this subpart, shall be subject to the inspection provisions of this section.

    (e) Applicability of reporting and recordkeeping requirements. Reporting and recordkeeping requirements in this subpart apply to any person engaging in international trade regardless of whether a trade permit has been issued to that person.

    12. Effective August 3, 2016, revise § 300.184 to read as follows:
    § 300.184 Species subject to permitting, documentation, reporting, and recordkeeping requirements.

    (a) Except as noted in paragraphs (b) and (c) of this section, the following fish or fish products are subject to the documentation requirements of this subpart, regardless of ocean area of catch, and must be reported under the appropriate heading or subheading numbers from the Harmonized Tariff Schedule of the United States (HTS):

    (1) Bluefin tuna,

    (2) Southern bluefin tuna,

    (3) Frozen bigeye tuna,

    (4) Swordfish, and

    (5) Shark fins.

    (b) For bluefin tuna, southern bluefin tuna, frozen bigeye tuna, and swordfish, fish parts other than meat (e.g., heads, eyes, roe, guts, and tails) may be imported without the documentation required under this subpart.

    (c) Bigeye tuna caught by purse seiners or pole and line (bait) vessels and destined for canneries within the United States, including all U.S. commonwealths, territories, and possessions, may be imported without the documentation required under this subpart.

    13. In § 300.185: a. Revise paragraphs (a)(2)(i), (a)(2)(ii)(A), and (a)(2)(iii)(A); b. Remove paragraph (a)(2)(vii); c. Revise paragraphs (a)(3), (b)(2) and (3), (c)(2)(i) and (ii), and (c)(3).

    The revisions read as follows:

    § 300.185 Documentation, reporting and recordkeeping requirements for consignment documents and re-export certificates.

    (a) * * *

    (2) Documentation requirements. (i) Except for shark fins, all fish or fish products regulated under this subpart, imported into the Customs territory of the United States or entered for consumption into a separate customs territory of a U.S. insular possession, must, at the time of presenting entry documentation for clearance by customs authorities (e.g., electronic filing via ACE or other documentation required by the port director) be accompanied by an original, complete, accurate, approved and properly validated, species-specific consignment document. An image of such document and the required data set must be filed electronically with CBP via ACE.

    (ii) Bluefin tuna. (A) Imports that were re-exported from another nation must also be accompanied by an original, complete, accurate, approved and properly validated, species-specific re-export certificate.

    (1) For Atlantic bluefin tuna, this requirement must be satisfied by the U.S. importer through electronic receipt and completion of a re-export certificate in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number or re-export certificate number, as applicable, and the importer trade permit number would suffice as an import filing, without need to submit any forms via DIS in ACE.

    (2) For bluefin tuna harvested from other than the Atlantic Ocean, or for Atlantic Bluefin tuna entered pursuant to a notified exception under (a)(2)(ii)(A)(1), an image of the original paper re-export certificate and the supporting consignment documents must be submitted to CBP via the ACE DIS.

    (iii) * * *

    (A) Imports that were previously re-exported and were subdivided or consolidated with another consignment before re-export, must also be accompanied by an original, completed, accurate, valid, approved and properly validated, species-specific re-export certificate. An image of such document, an image of the original import document, and the required data set must be filed electronically with CBP via ACE.

    (3) Reporting requirements. (i) For fish or fish products regulated under this subpart, except shark fins, that are entered for consumption and whose final destination is within the United States, which includes U.S. insular possessions, a permit holder must submit an image of the original consignment document that accompanied the fish product as completed under paragraph (a)(2) of this section to CBP electronically through the ACE DIS.

    (ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (a)(2)(vi)(A) of this section, unless NMFS provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number or the re-export certificate number, as applicable, and the importer trade permit number would suffice as an import filing, without need to submit any forms via DIS in ACE.

    (b) * * *

    (2) Documentation requirements. A permit holder must complete an original, approved, numbered, species-specific consignment document issued to that permit holder by NMFS for each export referenced under paragraph (b)(1) of this section, and electronically file an image of such documentation and the required data set with CBP via AES. Such an individually numbered document is not transferable and may be used only once by the permit holder to which it was issued to report on a specific export consignment. A permit holder must provide on the consignment document the correct information and exporter certification. The consignment document must be validated, as specified in § 300.187, by NMFS, or another official authorized by NMFS. A list of such officials may be obtained by contacting NMFS. A permit holder requesting U.S. validation for exports should notify NMFS as soon as possible after arrival of the vessel to avoid delays in inspection and validation of the export consignment.

    (i) For Atlantic bluefin tuna, this requirement must be satisfied by electronic completion of a consignment document in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number and the exporter trade permit number would suffice as an export filing, without need to submit any forms in AES via DIS.

    (ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by completion of a paper consignment document, and electronic filing of an image of such documentation and the required data set with CBP via AES.

    (3) Reporting requirements. (i) A permit holder must ensure that the original, approved, consignment document as completed under paragraph (b)(2) of this section accompanies the export of such products to their export destination and must electronically file an image of such documentation and the required data set with CBP via AES.

    (ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the eBCD system as directed in paragraph (b)(2)(i) of this section, unless NMFS provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number and the exporter trade permit number would suffice as an export filing without need to submit any forms in AES via DIS.

    (c) * * *

    (2) Documentation requirements. (i) If a permit holder re-exports a consignment of bluefin tuna, or subdivides or consolidates a consignment of fish or fish products regulated under this subpart, other than shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section, the permit holder must complete an original, approved, individually numbered, species-specific re-export certificate issued to that permit holder by NMFS for each re-export consignment. Such an individually numbered document is not transferable and may be used only once by the permit holder to which it was issued to report on a specific re-export consignment. A permit holder must provide on the re-export certificate the correct information and re-exporter certification. The permit holder must also attach the original consignment documentation that accompanied the import consignment or a copy of that documentation, and must note on the top of both the consignment documents and the re-export certificates the entry number assigned by CBP authorities at the time of filing the entry for the previously imported consignment. An electronic image of these documents and the required data set must be filed electronically with CBP via AES at the time of export.

    (A) For Atlantic bluefin tuna, these requirements must be satisfied by electronic completion of a re-export certificate in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number and the exporter trade permit number would suffice as a re-export filing, without need to submit any forms in AES via DIS.

    (B) For non-Atlantic bluefin tuna, these requirements must be satisfied by completion of a paper re-export certificate, and electronic filing of an image of such documentation and the required data set with CBP via AES.

    (ii) If a consignment of fish or fish products regulated under this subpart, except bluefin tuna or shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section is not subdivided into sub-consignments or consolidated with other consignments or parts thereof, for each such re-export consignment, a permit holder must complete the intermediate importer's certification on the original consignment document and note the entry number previously issued by CBP for the consignment at the top of the document. Such re-exports do not need a re-export certificate and the re-export does not require validation. An electronic image of the consignment document with the completed intermediate importer's certification and the required data set must be filed electronically with CBP via AES at the time of re-export.

    (3) Reporting requirements. (i) For each re-export, a permit holder must submit the original of the completed re-export certificate (if applicable) and the original or a copy of the original consignment document completed as specified under paragraph (c)(2) of this section, to the shipper to accompany the consignment of such products to their re-export destination, and an image of such documentation and the required data set must be filed electronically with CBP via AES.

    (ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (c)(2)(i)(A) of this section, unless NMF provides otherwise through actual notice or Federal Register notice. In cases where the documentation requirements have been completed in the ICCAT eBCD system, a reduced data set consisting of the eBCD number and the exporter trade permit number would suffice as an export filing, without need to submit any forms in AES via DIS.

    14. In § 300.189, revise paragraphs (a), (b), (c), (m), and (n) to read as follows:
    § 300.189 Prohibitions.

    (a) Falsify information required on an application for a permit submitted under § 300.322.

    (b) Import as an entry for consumption, purchase, receive for export, export, or re-export any fish or fish product regulated under this subpart without a valid trade permit issued under § 300.322.

    (c) Fail to possess, and make available for inspection, a trade permit at the permit holder's place of business, or alter any such permit as specified in § 300.322.

    (m) Fail to electronically file via ACE a validated consignment document and the required data set for imports at time of entry into the Customs territory of the United States of fish or fish products regulated under this subpart except shark fins, regardless of whether the importer, exporter, or re-exporter holds a valid trade permit issued pursuant to § 300.322 or whether the fish products are imported as an entry for consumption.

    (n) Import or accept an imported consignment of fish or fish products regulated under this subpart, except shark fins, without an original, complete, accurate, approved and properly validated, species-specific consignment document and re-export certificate (if applicable) with the required information and exporter's certification completed.

    Subpart Q—[Redesignated as Subpart R] 15. Redesignate subpart Q, consisting of § 300.330 through 300.341, as subpart R. 16. Add new subpart Q to read as follows: Subpart Q—International Trade Documentation and Tracking Programs Sec. 300.320 Purpose and scope. 300.321 Definitions. 300.322 International Fisheries Trade Permit. 300.323 Reporting requirements. 300.324 Prohibitions. Subpart Q—International Trade Documentation and Tracking Programs
    § 300.320 Purpose and scope.

    The regulations in this subpart are issued under the authority of the Atlantic Tunas Convention Act of 1975 (ATCA), the Magnuson-Stevens Fishery Conservation and Management Act, the Tuna Conventions Act of 1950, and the Antarctic Marine Living Resources Convention Act of 1984. These regulations implement the applicable recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT) for the conservation and management of tuna and tuna-like species in the Atlantic Ocean, the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of highly migratory fish resources in the eastern Pacific Ocean, and the Commission for the Conservation of Antarctic Marine Living Resources so far as they affect vessels and persons subject to the jurisdiction of the United States. These regulations are also issued under the Marine Mammal Protection Act of 1972, the Dolphin Protection Consumer Information Act and the Security and Accountability for Every Port Act of 2006. The requirements in this subpart may be incorporated by reference in other regulations under this title.

    § 300.321 Definitions.

    ACE Implementation Guide for NMFS means the data set and document imaging requirements set forth in the Appendices to the Customs and Trade Automated Interface Requirements issued by Customs and Border Protection.

    AMLR trade program means the program for monitoring trade in Antarctic marine living resources including, inter alia, Dissostichus species as set forth in subpart G of this part.

    Automated Commercial Environment (ACE) means, for purposes of this subpart, the central point through which import shipment data required by multiple agencies is filed electronically to Customs and Border Protection (CBP).

    Automated Export System (AES) means, for purposes of this subpart, the central point through which export shipment data required by multiple agencies is filed electronically to Customs and Border Protection (CBP).

    Catch and Statistical Document/Documentation means a document or documentation accompanying regulated seafood imports, exports and re-exports that is submitted by importers and exporters to document compliance with TTVP, AMLR, and HMS ITP trade documentation programs as described in § 216.24(f) of this title, and subparts G and M of this part.

    CBP means U.S. Customs and Border Protection, Department of Homeland Security.

    Documentation and data sets required under this subpart refers to documentation and data that must be submitted by an importer or exporter at the time of, or in advance of, the import, export or re-export of fish or fish products as required under this subpart, the AMLR trade program, the HMS ITP, or the TTVP. The required data sets and document images to be submitted for specific programs and transactions are posted by CBP as indicated in § 300.323.

    Fish or fish products regulated under this subpart means species and products containing species regulated under this subpart, the AMLR trade program, the HMS ITP, or the TTVP.

    HMS ITP means the Highly Migratory Species International Trade Program which includes trade monitoring and/or reporting and consignment documentation for trade of bluefin tuna, southern bluefin tuna, frozen bigeye tuna, swordfish, and shark fins as described in subpart M of this part.

    Import has the same meaning as 16 U.S.C. 1802(22). Import includes, but is not limited to, customs entry for consumption, withdrawal from customs bonded warehouse for consumption, or entry for consumption from a foreign trade zone.

    International Fisheries Trade Permit (or IFTP) means the permit issued by NMFS under § 300.222.

    TTVP means the Tuna Tracking and Verification Program, which regulates trade in certain fishery products as set forth in § 216.24(f)(2) of this title.

    § 300.322 International Fisheries Trade Permit.

    (a) General. Any person, including a resident agent for a nonresident corporation (see 19 CFR 141.18), who imports as defined in § 300.321, exports, or re-exports fish or fish products regulated under this sub-part from any ocean area, must possess a valid International Fisheries Trade Permit (IFTP) issued under this section. Fish or fish products regulated under this subpart may not be imported into, or exported or re-exported from, the United States unless the IFTP holder files electronically the documentation and the data sets required under this subpart with U.S. Customs and Border Protection (CBP) via ACE at the time of, or in advance of, importation, exportation or re-exportation. If authorized under other regulations under this title or other applicable laws and regulations, a representative or agent of the IFTP holder may make the electronic filings. Only persons resident in the United States are eligible to apply for the IFTP.

    (b) Application. A person must apply for an IFTP electronically via a Web site designated by NMFS. The application must be submitted electronically with the required permit fee payment, at least 30 days before the date upon which the applicant wishes the permit to be made effective.

    (c) Issuance. Except as provided in subpart D of 15 CFR part 904, NMFS will issue an IFTP within 30 days of receipt of a completed application. NMFS will notify the applicant of any deficiency in the application, including failure to provide information, documentation or reports required under this subpart. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned.

    (d) Duration. An IFTP issued under this section is valid for a period of one year from the permit effective date.

    (e) Alteration. Any IFTP that is substantially altered, erased, or mutilated is invalid.

    (f) Replacement. NMFS may issue replacement permits. An application for a replacement permit is not considered a new application. An appropriate fee, consistent with paragraph (j) of this section, may be charged for issuance of a replacement permit.

    (g) Transfer. An IFTP issued under this section is not transferable or assignable; it is valid only for the permit holder to whom it is issued.

    (h) Inspection. The permit holder must keep the IFTP issued under this section at his/her principal place of business. The IFTP must be displayed for inspection upon request of any authorized officer, or any employee of NMFS designated by NMFS for such purpose.

    (i) Sanctions. The Assistant Administrator may suspend, revoke, modify, or deny a permit issued or sought under this section. Procedures governing permit sanctions and denials are found at subpart D of 15 CFR part 904.

    (j) Fees. NMFS will charge a fee to recover the administrative expenses of permit issuance. The amount of the fee is calculated, at least annually, in accordance with the procedures of the NOAA Finance Handbook, available from NMFS, for determining the administrative costs of each special product or service. The fee may not exceed such costs and is specified on each application form. The appropriate fee must be submitted via a Web site designated by NMFS at the time of application. Failure to pay the fee will preclude issuance of the permit. Payment by a commercial instrument later determined to be insufficiently funded shall invalidate any permit.

    (k) Change in application information. Within 15 days after any change in the information contained in an application submitted under this section, the permit holder must report the change to NMFS via a Web site designated by NMFS. If a change in permit information is not reported within 30 days, the permit is void as of the 30th day after such change.

    (l) Renewal. Persons must apply annually for an IFTP issued under this section. A renewal application must be submitted via a Web site designated by NMFS, at least 15 days before the permit expiration date to avoid a lapse in permitted status. NMFS will renew a permit provided that: The application for the requested permit renewal is complete; all documentation and reports required under this subpart and the Magnuson-Stevens Act, Atlantic Tuna Conventions Act, the Tuna Conventions Act, the Marine Mammal Protection Act, the Dolphin Consumer Protection Information Act, and the Antarctic Marine Living Resources Act have been submitted, including those required under §§ 216.24, 216.93, 300.114, 300.183, 300.185, 300.186, 300.187 and 635.5 of this title; and the applicant is not subject to a permit sanction or denial under paragraph (i) of this section.

    § 300.323 Reporting requirements.

    Any person, including a resident agent for a nonresident entity (see 19 CFR 141.18), who imports as defined in § 300.321, exports, or re-exports fish or fish products regulated under this sub-part from any ocean area, must file all reports and documentation required under the AMLR trade program, HMS ITP, and TTVP as specified under this title and under other regulations that incorporate by reference the requirements of this subpart. For imports, specific instructions for electronic filing are found in Customs and Trade Automated Interface Requirements (CATAIR) Appendix PGA (https://www.cbp.gov/document/guidance/appendix-pga). For exports, specific instructions for electronic filing are found in Automated Export System Trade Interface Requirements (AESTIR) Appendix Q (https://www.cbp.gov/document/guidance/aestir-draft-appendix-q-pga-record-formats). For fish and fish products regulated under this subpart, an ACE entry filing or AES export filing, as applicable, is required regardless of value, except in cases where CBP provides alternate means of collecting NMFS-required data and/or document images.

    § 300.324 Prohibitions.

    In addition to the prohibitions specified in §§ 300.4, 300.117, 300.189, 600.725 and 635.71 of this title, it is unlawful for any person subject to the jurisdiction of the United States to:

    (a) Violate any provision of this subpart, or the conditions of any IFTP issued under this subpart,

    (b) Import, export or re-export fish or fish products regulated under this subpart, including imports or exports otherwise eligible for the de minimis value exemption from filing requirements under CBP procedures, without a valid IFTP as required under § 300.322 or without submitting complete and accurate information as required under § 300.323.

    PART 600—MAGNUSON-STEVENS ACT PROVISIONS 17. The authority citation for part 600 continues to read as follows: Authority:

    5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

    18. In § 600.705, revise the first sentence of paragraph (g) to read as follows:
    § 600.705 Relation to other laws,

    (g) High seas fishing activities. Regulations governing permits and requirements for fishing activities on the high seas are set forth in 50 CFR part 300, subparts A and R.* * *

    PART 660—FISHERIES OFF WEST COAST STATES 19. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    20. In § 660.2, revise paragraph (c) to read as follows:
    § 660.2 Relation to other laws.

    (c) Fishing activities on the high seas are governed by regulations of the High Seas Fishing Compliance Act set forth in 50 CFR part 300, subparts A and R.

    [FR Doc. 2016-18401 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 120815345-3525-02] RIN 0648-XE754 Snapper-Grouper Fishery of the South Atlantic; 2016 Commercial Accountability Measure and Closure for the South Atlantic Lesser Amberjack, Almaco Jack, and Banded Rudderfish Complex AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements an accountability measure (AM) for the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex (other jacks complex) in the South Atlantic for the 2016 fishing year through this temporary rule. NMFS projects that commercial landings of the other jacks complex will reach their combined commercial annual catch limit (ACL) by August 9, 2016. Therefore, NMFS closes the commercial sector for this complex on August 9, 2016, through the remainder of the fishing year in the exclusive economic zone (EEZ) of the South Atlantic. This closure is necessary to protect the lesser amberjack, almaco jack, and banded rudderfish resources.

    DATES:

    This rule is effective 12:01 a.m., local time, August 9, 2016, until 12:01 a.m., local time, January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes lesser amberjack, almaco jack, and banded rudderfish, and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The combined commercial ACL for the other jacks complex is 189,422 lb (85,920 kg), round weight. Under 50 CFR 622.193(l)(1)(i), NMFS is required to close the commercial sector for the other jacks complex when the commercial ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial sector for this complex is projected to reach its ACL by August 9, 2016. Therefore, this temporary rule implements an AM to close the commercial sector for the other jacks complex in the South Atlantic, effective 12:01 a.m., local time August 9, 2016.

    The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having lesser amberjack, almaco jack, or banded rudderfish on board must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, August 9, 2016. During the closure, the bag limit specified in 50 CFR 622.187(b)(8) and the possession limits specified in 50 CFR 622.187(c) apply to all harvest or possession of lesser amberjack, almaco jack, or banded rudderfish in or from the South Atlantic EEZ. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, regardless of whether such species were harvested in state or Federal waters. During the closure, the sale or purchase of lesser amberjack, almaco jack, or banded rudderfish taken from the EEZ is prohibited.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the fish in the other jacks complex, a component of the South Atlantic snapper-grouper fishery, and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(l)(1)(i) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and public comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for the other jacks complex constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the other jacks complex since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 28, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-18249 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    81 149 Wednesday, August 3, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 951 [Docket Number DOE-HQ-2014-0021] RIN 1990-AA39 Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation AGENCY:

    Office of General Counsel, U.S Department of Energy.

    ACTION:

    Notice of public workshop.

    SUMMARY:

    This document provides information on a public workshop to discuss the U.S. Department of Energy's (DOE) notice and request for comment on a proposed collection of information. DOE developed the proposed collection of information in connection with the notice of proposed rulemaking on the Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation (NOPR) in which it proposed regulations to establish a retrospective risk pooling program covering nuclear suppliers that may be required under certain circumstances to pay for any contribution by the United States government to the international supplementary fund created by the Convention for Supplementary Compensation for Nuclear Damage.

    DATES:

    DOE will hold a public workshop on Friday, September 16, 2016 from 9 a.m. to 12 noon, in Washington, DC. DOE will accept comments, data, and information received no later than October 3, 2016, which is the close of the comment period on the Notice. DOE will accept for consideration questions or suggestions on topics for comment in advance of the public workshop, by Wednesday, September 7, 2016.

    ADDRESSES:

    The public workshop will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue SW., Washington, DC 20585-0121. For details regarding attendance at the public workshop see the Public Participation section of this notice.

    Any comments submitted on the proposed information collection must identify docket number DOE-HQ-2014-0021 and/or regulatory information number (RIN) 1990-AA39. Comments may be submitted using any of the following methods:

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

    2. Email: [email protected]

    3. Mail: Ms. Sophia Angelini, U.S. Department of Energy, Office of General Counsel, Mailstop GC-72, Section 934 Rulemaking, 1000 Independence Avenue SW., Washington DC 20585. Please submit one signed original and three copies of all comments submitted by mail.

    Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov, or the Web site specifically established for this proceeding: http://www.energy.gov/gc/convention-supplementary-compensation-rulemaking. To obtain a copy of the proposed information collection instrument and instructions go to the Web site specifically established for this proceeding: http://www.energy.gov/gc/convention-supplementary-compensation-rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    Sophia Angelini, Attorney-Adviser, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Telephone (202) 586-0319.

    SUPPLEMENTARY INFORMATION: Background

    Elsewhere in this issue of the Federal Register, DOE published a request for comments on a proposed information collection that requires approval from the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995. DOE developed the information collection in connection with a NOPR in which it proposed regulations to establish a retrospective risk pooling program covering nuclear suppliers that may be required under certain circumstances to pay for a contribution by the United States government to the international supplementary fund created by the Convention on Supplementary Compensation for Nuclear Damage. (79 FR 75076, Dec. 17, 2014) DOE issued these proposed regulations pursuant to section 934 of the Energy Independence and Security Act of 2007.

    DOE held an information session on the proposed regulation on January 7, 2015, followed by a day-long public workshop on February 20, 2015 (80 FR 4227). On March 9, 2015, DOE granted an extension of the public comment period on the NOPR to April 17, 2015 (80 FR 12352). The extension notice highlighted areas of particular attention for public comment, and indicated DOE's intent to conduct additional data and information gathering in response to and in consideration of comments provided in the public review and comment process. In sum, commenters on the NOPR suggested that DOE's proposed formula to calculate the retrospective premium payment was unnecessarily complex, reporting requirements for nuclear suppliers were unduly burdensome, and additional data and information on nuclear suppliers and exports were needed to support the rulemaking and enable the public to provide DOE with meaningful comments.

    DOE is now proposing this information collection to gather such additional data and information from the nuclear industry in support of further development of its rulemaking. Since receiving public comments on the NOPR, and as suggested in those comments, DOE has conducted additional information and data gathering involving other relevant federal agencies. While DOE continues to review and consider this additional information and data, the proposed information collection is necessary to provide information not reported to or available from other federal agencies to inform and advance the rulemaking process. In addition, the information and data requested in the proposed information collection reflect in part comments submitted by the public on recommended risk allocation formulas and related information and data needs. One commenter, the Nuclear Energy Institute, provided a specific and detailed recommendation on an industry model for a retrospective risk pooling program, with alternative methods of risk allocation. The proposed information collection is designed in part to obtain the information that could support a regulation based on that model. For example, the information collection is focused on the export of nuclear goods and services to industry sectors, rather than on specific types of nuclear goods and services exported. DOE also seeks in the proposed information collection to obtain information and data needed to assess and affirm the number and type of nuclear suppliers exporting nuclear goods and services and the value of those goods and services, to refine the scope and applicability of the retrospective risk pooling program within the nuclear supplier community.

    The proposed information collection is a one-time effort to facilitate development of the regulation; it is separate from and not intended to be the same as the information that would be collected in connection with any reporting requirements that would take effect after promulgation of a final regulation.

    Upon approval of the information collection, and following review and analysis of the information and data obtained from nuclear suppliers in response, DOE will determine whether it is appropriate to issue a supplemental proposed regulation. As this process advances, DOE also intends to engage the public in additional opportunities for review and comment on the rulemaking, including on any supplemental proposal that is issued.

    To facilitate discussion at the public workshop, DOE encourages participants to provide views and comments on the proposed information collection form which may be viewed at http://www.energy.gov/gc/convention-supplementary-compensation-rulemaking as well as on the following topics: (1) Does the information collection form seek appropriate and sufficient information and data from nuclear suppliers to support further development of DOE's proposed regulation, in particular with respect to the risk-informed formula; (2) is the information collection request too broad or too narrow, and if so, in what way; (3) has DOE overestimated or underestimated the number of respondents to the information collection form and if so, by how much; (4) has DOE overestimated or underestimated the burden hours of each respondent to the collection form and if so, by how much; (5) has DOE overestimated or underestimated the cost per respondent to collect the information requested in the form and if so, by how much; (6) what additional information, if any, should DOE include in the information collection form to support further development of its proposed regulation; and (7) are there other actions, in addition to the issuance of the proposed information collection form, that DOE should consider or pursue to obtain the information and data to support further development of its proposed regulation. DOE requests commenters provide any underlying data or other information in support of their views and comments in a manner sufficient to allow DOE to also review, assess and verify such data and information as appropriate.

    Public Participation A. Attendance at Public Workshop

    If you plan to attend the public workshop, please notify Alencia Jenkins at (202) 586-0426 or by email: [email protected] Please note that foreign nationals visiting DOE Headquarters are subject to advance screening procedures which require advance notice prior to attendance at the public workshop. If a foreign national wishes to participate in the public workshop, please inform DOE of this fact as soon as possible by contacting Alencia Jenkins at (202) 586-0426 or by email to [email protected] so that the necessary procedures may be implemented.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Drivers' licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required. DHS has determined that regular drivers' licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma and Washington. Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced ID-Card issued by the states of Minnesota, New York, or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Drivers' License); or a military ID or other Federal government issued Photo-ID card.

    DOE requires visitors with laptop computers to be checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the Visitors' Desk to have these devices checked before proceeding through security.

    B. Conduct of Public Workshop

    The Department will designate a DOE official to preside at the public workshop and may also use a professional facilitator to aid discussion. A court reporter will be present to record the proceeding and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public workshop. Interested parties may submit comments on the proposed information collection at any point until the end of the comment period.

    The workshop will be conducted in an informal, conference style. DOE will allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting the proposed information collection.

    Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time allows, other participants to comment briefly on any general statements. At the end of all prepared statements, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions concerning other matters relevant to this information collection. The official conducting the public workshop will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public workshop.

    In addition, DOE will accept for consideration questions or suggestions on topics for comment in advance of the public workshop, by September 7, 2016. If you wish to submit questions or suggestions on topics for comment, please submit them via one of the means provided in the ADDRESSES section of this notice. DOE may use the questions or topic suggestions to structure the discussion and enhance participation. A transcript of the public workshop will be included in the docket, which can be viewed as described in the Docket section of this notice.

    C. Procedure for Submitting Prepared General Statements and Suggested Topics

    Persons who plan to present a prepared general statement may request that copies of the statement be made available at the public workshop. Such persons may submit requests, along with an advance electronic copy of their statement in PDF to the appropriate address shown in the ADDRESSES section of this notice. The request and advance copy of statements must be received by September 7, 2016 and may be emailed, or sent by mail. DOE prefers to receive requests and advance copies via email. Please include a telephone number to enable DOE staff to make a follow-up contact, if needed.

    Persons who plan to submit questions and topic suggestions for the public workshop must do so by September 7, 2016, via email or by mail, to the appropriate address shown in the ADDRESSES section of this notice. DOE prefers to receive the requests via email. Please include a telephone number to enable DOE staff to make a follow-up contact, if needed.

    D. Submission of Comments

    DOE will continue to accept comments, data, and information concerning this proposed information collection before and after the public workshop, but no later than October 3, 2016. Interested parties may submit comments using any of the methods described in the ADDRESSES section of this notice.

    Issued in Washington, DC, on July 29, 2016. Samuel T. Walsh, Deputy General Counsel for Energy Policy, Office of General Counsel.
    [FR Doc. 2016-18368 Filed 8-2-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8182; Directorate Identifier 2016-NM-069-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, and -214 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. This proposed AD was prompted by reports of cracks on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). This proposed AD would require repetitive inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R, and corrective actions if necessary. We are proposing this AD to detect and correct such cracking and corrosion, which could lead to T/R malfunction and, in a case of rejected takeoff at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the airplane and injury to occupants.

    DATES:

    We must receive comments on this proposed AD by September 19, 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 Airbus service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    For Goodrich Aerostructures service information identified in this NPRM, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; telephone 619-691-2719; email [email protected]; Internet http://www.goodrich.com/TechPubs.

    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-2016-8182; 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:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8182; Directorate Identifier 2016-NM-069-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union has issued EASA Airworthiness Directive 2016-0076, dated April 18, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, and -214 airplanes; and Model A321-111, -112, v211, -212, and -213 airplanes. The MCAI states:

    Several operators reported finding cracks, during an unscheduled inspection, on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). Investigation results revealed that these cracks were caused by a combination of stress and fatigue effects. Further analysis determined that only aeroplanes fitted with CFM56-5A or CFM56-5B series engines could be affected by this issue.

    This condition, if not detected and corrected, could lead to T/R malfunction and, in a case of rejected take off at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the aeroplane and injury to occupants.

    For the reasons described above, EASA issued AD 2016-0068, requiring repetitive inspections [for cracks and corrosion] of the T/R pivot fittings at the 3 o'clock and 9 o'clock positions and, depending on findings, accomplishment of applicable corrective action(s).

    Since that [EASA] AD was issued, it was determined that the list of part numbers (P/N) of affected T/R pivot fitting, as identified in that [EASA] AD, was incomplete.

    For the reason stated above, this [EASA] AD retains the requirements of EASA AD 2016-0068, which is superseded, but expands the list of affected fitting P/Ns.

    Corrective actions include repair of cracking and corrosion.

    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-2016-8182.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R.

    Goodrich Aerostructures has issued Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R, and repair of corrosion.

    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 400 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 4 work-hours × $85 per hour = $340 per inspection cycle $0 $340 per inspection cycle $136,000 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): Airbus: Docket No. FAA-2016-8182; Directorate Identifier 2016-NM-069-AD. (a) Comments Due Date

    We must receive comments by September 19, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(4) of this AD, all manufacturer serial numbers.

    (1) Airbus Model A318-111 and -112 airplanes.

    (2) Airbus Model A319-111, -112, -113, -114, and -115 airplanes.

    (3) Airbus Model A320-211, -212, and -214 airplanes.

    (4) Airbus Model A321-111, -112, -211, -212, and -213 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 78, Engine exhaust.

    (e) Reason

    This AD was prompted by reports of cracks on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). We are issuing this AD to detect and correct such cracking and corrosion, which could lead to T/R malfunction and, in a case of rejected takeoff at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the airplane and injury to occupants.

    (f) Compliance

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

    (g) Inspections and Corrective Actions

    At the applicable compliance time specified in paragraph (h) of this AD: Do a high frequency eddy current (HFEC) inspection for cracking and corrosion of each T/R pivot fitting specified in paragraphs (g)(1) and (g)(2) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016; as applicable; except as required by paragraph (i) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection of the T/R pivot fittings thereafter at intervals not to exceed 60 months or 12,000 flight cycles, whichever occurs first.

    (1) The 3 o'clock position T/R pivot fittings having part numbers (P/N) that are provided in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD.

    (i) P/N 321-200-850-6.

    (ii) P/N 321-200-851-6.

    (iii) P/N 321-200-852-6.

    (iv) P/N 321-200-853-6.

    (2) The 9 o'clock position T/R pivot fittings having P/Ns that are provided in paragraphs (g)(2)(i) through (g)(2)(iv) of this AD.

    (i) P/N 321-200-800-6.

    (ii) P/N 321-200-801-6.

    (iii) P/N 321-200-802-6.

    (iv) P/N 321-200-803-6.

    (h) Compliance Times

    At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD, do the initial inspection specified in paragraph (g) of this AD. If maintenance records cannot conclusively determine the T/R flight cycles accumulated since first installation, or the time since new, do the initial inspection required by paragraph (g) of this AD at the compliance time specified in paragraph (h)(2) of this AD.

    (1) Before exceeding 10 years or 24,000 total flight cycles accumulated by the T/R, whichever occurs first since first installation on an airplane.

    (2) Within 36 months or 7,200 flight cycles, whichever occurs first after the effective date of this AD.

    (i) Exceptions to Service Information Specification

    (1) If any crack is found during any inspection required by this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (2) If any corrosion is found during any inspection required by this AD and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016, specifies obtaining a damage disposition from Goodrich Aerostructures: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.

    (j) Parts Installation Limitation

    As of the effective date of this AD, no person may install on any airplane a T/R pivot fitting having a part number specified in paragraph (g)(1) or (g)(2) of this AD, unless it is determined, prior to installation, that the T/R pivot fitting has accumulated less than 10 years and fewer than 24,000 total flight cycles since its first installation on an airplane, or less than 60 months and fewer than 12,000 flight cycles after having passed an inspection in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016.

    (k) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-70-1003, dated May 7, 2014.

    (2) This paragraph provides credit for actions specified in paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (k)(2)(i), or (k)(2)(ii), or (k)(2)(iii) of this AD.

    (i) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, dated April 29, 2014.

    (ii) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 1, dated January 26, 2015.

    (iii) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 2, dated December 2, 2015.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (3) Required for Compliance (RC): Except as required by paragraph (i) of this AD: If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified 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 procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0076, dated April 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-2016-8182.

    (2) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    (3) For Goodrich Aerostructures service information identified in this AD, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; telephone 619-691-2719; email [email protected]; Internet http://www.goodrich.com/TechPubs.

    (4) 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 25, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18262 Filed 8-2-16; 8:45 am] BILLING CODE 4910-13-P
    POSTAL REGULATORY COMMISSION 39 CFR Part 3001 [Docket No. RM2016-6] Procedures Related to Motions AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Notice of proposed rulemaking; reopening of comment period.

    SUMMARY:

    The Commission is noticing the reopening of the comment period on a proposed rulemaking. This document informs the public of the docket's reinstatement, invites public comment, and takes other administrative steps.

    DATES:

    The comment period for the proposed rulemaking published on February 1, 2016 (81 FR 5085) is reopened. Comments are due on or before September 2, 2016.

    ADDRESSES:

    Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6820.

    SUPPLEMENTARY INFORMATION:

    On February 23, 2016, the Commission granted the Postal Service's motion to suspend proceedings in the above-captioned docket.1 The Commission held the rulemaking in abeyance pending its resolution of the Postal Service's motion for reconsideration of Order No. 3047. Order No. 3096 at 1. On July 20, 2016, the Commission issued an order resolving the Postal Service's motion for reconsideration.2 Accordingly, the Commission reinstates the rulemaking in the above-captioned docket and sets a new comment deadline.

    1 Order Holding Rulemaking in Abeyance, February 23, 2016 (Order No. 3096).

    2 Docket No. R2013-10R, Order No. 3441, Order Resolving Motion for Reconsideration of Commission Order No. 3047, July 20, 2016.

    Interested persons are invited to provide written comments in response to the Notice of Proposed Rulemaking.3 Comments are due no later than 30 days after the date of publication of this document in the Federal Register. All comments and suggestions received will be available for review on the Commission's Web site, http://www.prc.gov.

    3See Notice of Proposed Rulemaking on Motions Concerning Mail Preparation Changes, January 22, 2016 (Order No. 3048); 81 FR 5085 (February 1, 2016) (Procedures Related to Motions).

    As indicated in Order No. 3048, the Commission will accommodate motions concerning mail preparation changes under the Commission's general motion rules until more specific rules can be implemented under the present rulemaking. See Order No. 3048 at 2-3. This rulemaking proposes a procedure to allow the Postal Service to implement mail preparation changes with limited disruption by setting “a reasonable but definite timeframe by which interested parties may challenge a mail preparation change.” 4 Therefore, the Commission reinstates Docket No. RM2016-6, and intends to complete the rulemaking process without further delay.

    4 Order No. 3048 at 4; Procedures Related to Motions at 5086.

    IT IS ORDERED:

    1. The rulemaking in Docket No. RM2016-6 is reinstated.

    2. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the Federal Register.

    3. The Secretary shall arrange for publication of this document in the Federal Register.

    By the Commission.

    Stacy L. Ruble, Secretary.
    [FR Doc. 2016-18170 Filed 8-2-16; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2014-0830; FRL-9950-11-OAR] RIN 2060-AS99 National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to amend the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Aerospace Manufacturing and Rework Facilities. In the “Rules and Regulations” section of this Federal Register, we are clarifying the compliance date for the handling and storage of waste as a direct final rule without a prior proposed rule. If we receive no significant and relevant adverse comment, we will not take further action on this proposed rule.

    DATES:

    Written comments must be received by September 2, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0830, 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. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2014-0830. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this proposed action, contact Ms. Kim Teal, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5580; fax number: (919) 541-5450; and email address: [email protected] For information about the applicability of the NESHAP to a particular entity, contact Mr. John Cox, Office of Enforcement and Compliance Assurance, (202) 564-1395, [email protected]

    SUPPLEMENTARY INFORMATION:

    Organization of this document. The information in this preamble is organized as follows:

    I. General Information A. Why is the EPA issuing this proposed rule? B. Does this action apply to me? C. What are the amendments in this proposed rule? II. Statutory and Executive Order Reviews I. General Information A. Why is the EPA issuing this proposed rule?

    This document proposes to take action on the NESHAP for Aerospace Manufacturing and Rework Facilities. We have published a direct final rule to clarify the compliance date for the handling and storage of waste in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no significant and relevant adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

    If we receive no significant and relevant adverse comment, we will not take further action on this proposed rule. If we receive significant and relevant adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

    We do 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 see the information provided in the ADDRESSES section of this document.

    B. Does this action apply to me?

    Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

    Table 1—Industrial Source Categories Affected by This Action Source category NESHAP NAICS 1 Code Aerospace Aerospace 336411 Manufacturing and Rework Facilities Manufacturing and Rework Facilities 336412 336413 336414 336415 336419 481111 481112 481211 481212 481219 1 North American Industry Classification System.

    Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

    C. What are the amendments in this proposed rule?

    This proposed rule provides a compliance date of December 7, 2018, for sources subject to the requirements for handling and storage of waste in 40 CFR part 63, subpart GG.

    The EPA is accepting comments only on the specific issue raised in this proposed action and the accompanying direct final rule, the compliance date for handling and storage of waste. The EPA is not reopening or accepting comment on any other aspect of the NESHAP for Aerospace Manufacturing and Rework Facilities.

    II. Statutory and Executive Order Reviews

    For a complete discussion of the rationale, regulatory text, and all of the administrative requirements applicable to this action, see the direct final rule in the “Rules and Regulations” section of this Federal Register.

    Dated: July 26, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-18396 Filed 8-2-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 413, 414 and 494 [CMS-1651-P] RIN 0938-AS83 Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment; and the Comprehensive End-Stage Renal Disease Care Model Correction

    In proposed rule document 2016-15188 beginning on page 42802 in the issue of Thursday, June 30, 2016, make the following corrections:

    1. On page 42851, in the third column, in the ninth line from the bottom, “2035” should read “2015”.

    2. On page 42852, in the table, in the first column, in the seventeenth row, “E0303” should read “E0301”.

    3. On the same page, in the same table, in the same column, in the final row on this page, “E0330” should read “E0130”.

    4. On page 42853, in the table, in the first column, in the first row on this page, “E0335” should read “E0135”.

    5. On the same page, in the same table, in the same column, in the second row on this page, “E0341” should read “E0141”.

    6. On the same page, in the same table, in the same column, in the second row on this page, “E0343” should read “E0143”.

    [FR Doc. C1-2016-15188 Filed 8-2-16; 8:45 am] BILLING CODE 1505-01-D
    SURFACE TRANSPORTATION BOARD 49 CFR Parts 1109 [Docket No. EP 734] Dispute Resolution Procedures Under the Fixing America's Surface Transportation Act of 2015 AGENCY:

    Surface Transportation Board.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Surface Transportation Board (Board) proposes regulations to implement passenger rail-related dispute resolution provisions of the Fixing America's Surface Transportation Act of 2015.

    DATES:

    Comments on this proposal are due by August 31, 2016; reply comments are due by September 30, 2016.

    ADDRESSES:

    Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 734, 395 E Street SW., Washington, DC 20423-0001.

    Copies of written comments received by the Board will be posted to the Board's Web site at http://www.stb.dot.gov and will be available for viewing and self-copying in the Board's Public Docket Room, Suite 131, 395 E Street SW., Washington, DC. Copies of the comments will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0235 or 395 E Street SW., Washington, DC 20423-0001.

    FOR FURTHER INFORMATION CONTACT:

    Scott M. Zimmerman, (202) 245-0386. Assistance for the hearing impaired is available through Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    Title XI of the Fixing America's Surface Transportation Act of 2015 (FAST Act),1 entitled “Passenger Rail Reform and Investment Act of 2015,” adds to the Board's existing passenger rail adjudicatory responsibilities related to the National Railroad Passenger Corporation (Amtrak). Among other things, Title XI includes new provisions involving cost recovery by Amtrak for Amtrak's operation of “state-supported routes” and for the costs allocated to states (including state entities) using the Northeast Corridor rail facilities for their commuter rail operations. As relevant here, Title XI gives the Board jurisdiction to resolve cost allocation and access disputes between Amtrak, the states, and potential non-Amtrak operators of intercity passenger rail service.2 In this notice, the Board is proposing a set of procedural rules for the mediation of passenger rail matters arising under Title XI of the FAST Act. Because the Board does not presently have in place a general set of procedural rules to govern the presentation and conduct of proceedings before the Board involving passenger rail matters entrusted to the Board under 49 U.S.C. 24101-24910,3 which would include contested matters arising under Title XI of the FAST Act, parties seeking to bring contested matters before the Board should be guided by the Board's existing Rules of Practice, as applicable.

    1 Fixing America's Surface Transportation Act of 2015, Pub. L. 114-94 (signed Dec. 4, 2015).

    2 Currently, Amtrak is the only operator of regularly scheduled, common carrier intercity passenger rail service in the United States. Certain statutory provisions contemplate the possibility, in the future, of other such intercity passenger rail operators. See, e.g., 49 U.S.C. 24711 & 49 U.S.C. 24308(f).

    3See 49 CFR 1100.1 (limiting the scope of the Rules of Practice to matters under title 49, subtitle IV of the United States Code, 49 U.S.C. 10101 et seq.).

    FAST Act Provisions

    The State-Supported Route Committee. Section 11204 of the FAST Act adds a new section to the United States Code: 49 U.S.C. 24712, “State supported routes operated by Amtrak.” State-supported routes are intercity rail passenger routes for which operating and capital costs are established and allocated among the states and Amtrak under Section 209 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA).4 Under these agreements, Amtrak currently receives funding from states and state-related entities to operate routes under 750 miles in length. New section 24712 establishes a State-Supported Route Committee comprising Amtrak, the U.S. Department of Transportation/Federal Railroad Administration, and states that subsidize state-supported routes, to implement the cost-allocation methodology previously developed under section 209 of PRIIA through negotiation between Amtrak and the affected states and approved by the Board. See Amtrak's Pet. for Determination of PRIIA Sec. 209 Cost Methodology, FD 35571 (STB served Mar. 15, 2012). The Committee may also amend that cost-allocation methodology. Section 24712(c)(1) gives the Board jurisdiction to “conduct dispute resolution” pertaining to (1) the Committee's rules and procedures, (2) the invoices to be produced by Amtrak or reports to be produced by Amtrak or the states as described in section 24712(b), and (3) the implementation of or compliance with the cost allocation methodology. Section 24712(c)(2) requires the Board to establish procedures for resolving such disputes, which procedures “may include provision of professional mediation services.”

    4 Public Law 110-432, Section 209; 49 U.S.C. 24101 note.

    The Northeast Corridor Commission. Section 11305 of the FAST Act, which amends 49 U.S.C. 24905, involves the powers and obligations of the Northeast Corridor Commission (NEC Commission), created by Congress in 2008 as part of PRIIA.5 The NEC Commission, composed of voting representatives from Amtrak, the U.S. Department of Transportation, and the states comprising the Northeast Corridor (including the District of Columbia), is responsible for developing and implementing a standardized policy for determining and allocating costs, revenues, and compensation between Amtrak and the providers of commuter rail passenger transportation on the Northeast Corridor. 49 U.S.C. 24905(c).

    5 The NEC Commission was originally established as the Northeast Corridor Infrastructure and Operations Advisory Commission. See 49 U.S.C. 24905.

    The FAST Act amends 49 U.S.C. 24905 with respect to the Board's role in resolving disputes between Amtrak and the states in determining compensation for use of the Northeast Corridor by applying the policy approved by the NEC Commission. Under section 24903(c), formerly section 24904(c), Congress gave Amtrak the authority to allow freight and commuter rail passenger operations over Amtrak's Northeast Corridor and laid out the standard for the Board to determine compensation if the parties did not reach agreement. The FAST Act creates a new subsection, section 24905(c)(4), that permits the NEC Commission, Amtrak, or public authorities providing commuter rail passenger transportation on the Northeast Corridor to request that the Board conduct dispute resolution if a dispute arises over implementation of, or compliance with, the NEC Commission's cost allocation policy. The new subsection requires the Board to establish procedures for resolving such disputes and provides that those procedures “may include the provision of professional mediation services.” 6

    6 Section 11307 of the FAST Act, “Competition,” adds a new section to the United States Code, 49 U.S.C. 24711, establishing a pilot program for winning bidders to operate no more than three long-distance routes currently operated by Amtrak. Section 24711 gives the Board jurisdiction over disputes between Amtrak and the pilot operator over the price and other terms and conditions of access to Amtrak facilities and services that the pilot operator claims are required to support the transferred routes, and over whether Amtrak's other services would be unreasonably impaired by providing such access. If the Board determines that access is necessary and would not unreasonably impair Amtrak's other services, then the Board is required to determine reasonable compensation to be paid to Amtrak and other terms of use and must order Amtrak to provide access based on those terms and conditions. 49 U.S.C. 24711(g). Section 11307, however, does not include a provision like those discussed above requiring the Board to establish procedures for resolving such disputes and providing that those procedures “may include the provision of professional mediation services.”

    The Proposed Rules

    The proposed rules would add to the Board's current mediation rules at 49 CFR part 1109 a new § 1109.5 that includes provisions specific to the State-Sponsored Route Committee and the Northeast Corridor Committee, to implement the FAST Act's directive that procedures for resolving certain disputes arising from those committees “may include provision of professional mediation services.” In the proposed regulations, parties to a dispute under sections 24712 and 24905 would be permitted to request, by letter submitted to the Board's Office of Public Assistance, Governmental Affairs, and Compliance, the Board's informal assistance in securing outside professional mediation services in order to resolve certain disputes as set forth in the FAST Act, without the necessity of a formal complaint being filed with Board.7

    7 The proposed mediation procedures originated in the events leading up to the FAST Act's creation of the State-Sponsored Route Committee. Following the enactment of PRIIA in 2008, and pursuant to PRIIA section 209, Amtrak developed a single, nationwide standardized methodology for establishing and allocating operating and capital costs among the states and Amtrak for all State-subsidized intercity passenger rail services. Lacking the unanimous concurrence of the concerned states, the methodology underwent mandatory review by the Board, which found it to be in compliance with the PRIIA requirements. Amtrak's Pet. for Determination of PRIIA Sec. 209 Cost Methodology, FD 35571 (STB served Mar. 15, 2012). Thereafter, several issues emerged between Amtrak and the states that they were unable to resolve in the course of their good-faith efforts to implement section 209 and the cost allocation methodology. Therefore, in 2014 the Board engaged the Federal Mediation and Conciliation Service (FMCS) to organize and facilitate focused discussions involving Amtrak and the affected states in an effort to resolve outstanding issues informally. In June 2015, the parties, with the assistance of the Board-sponsored FMCS facilitation team, reached agreement on the creation of a committee structure including Amtrak, the Federal Railroad Administration, and the affected states, to negotiate and resolve ongoing cost allocation issues. That committee was the predecessor of, and model for, the State-Sponsored Route Committee established in the FAST Act and codified at 49 U.S.C. 24712.

    The Board invites public comment on any aspect of the procedural rules proposed here.

    Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), the Board seeks comments regarding: (1) Whether the revisions to the collections of information proposed here are necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden assessment; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burdens of the collections of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. The proposed revisions described in this notice are being submitted to OMB for review as required under the PRA, 5 U.S.C. 3507(d) and OMB regulations at 5 CFR 1320.11. Comments received by the Board regarding the information collection will also be forwarded to OMB for its review when the final rule is published.

    Regulatory Flexibility Act Certification. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” Section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The proposed regulations would specify procedures related to dispute resolution of certain passenger rail transportation matters by the Board and do not mandate or circumscribe the conduct of small entities. If a party wishing to utilize the proposed procedures files a complaint, petition, application, or request for dispute resolution, that entity will not encounter any additional burden. Rather, the procedures are being updated and clarified by the proposed regulations. Therefore, the Board certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as defined by the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    List of Subjects in 49 CFR Part 1109

    Administrative practice and procedure, Maritime carriers, Motor carriers, Railroads.

    It is ordered:

    1. Comments on this proposal are due by August 31, 2016; reply comments are due by September 30, 2016.

    2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    3. Notice of this decision will be published in the Federal Register.

    4. This decision is effective on its service date.

    Decided: July 28, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Kenyatta Clay, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend part 1109 of title 49, chapter X, of the Code of Federal Regulations as follows:

    PART 1109—USE OF MEDIATION IN BOARD PROCEEDINGS 1. Revise the authority citation for part 1109 to read as follows: Authority:

    5 U.S.C. 571 et seq. and 49 U.S.C. 1321(a), 24712(c), and 24905(c).

    2. Add § 1109.5 to read as follows:
    § 1109.5 Resolution of certain disputes involving the State Sponsored Route Committee and the Northeast Corridor Commission.

    (a) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, Amtrak or a State member of the State Supported Route Committee established under 49 U.S.C. 24712 may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes arising from:

    (1) Implementation of, or compliance with, the cost allocation methodology for State-Supported Routes developed under section 209 of the Passenger Rail Investment and Improvement Act of 2008 or amended under 49 U.S.C. 24712(a)(6);

    (2) Invoices or reports provided under 49 U.S.C. 24712(b); or

    (3) Rules and procedures implemented by the State Supported Route Committee under 49 U.S.C. 24712(a)(4). Such a request for informal assistance in securing outside professional mediation services may be submitted to the Board even in the absence of a complaint proceeding before the Board.

    (b) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, the Northeast Corridor Commission established under 49 U.S.C. 24905, Amtrak, or public authorities providing commuter rail passenger transportation on the Northeast Corridor may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes involving implementation of, or compliance with, the policy developed under 49 U.S.C. 24905(c)(1). Such a request for informal assistance in securing outside professional mediation services may be submitted to the Board even in the absence of a complaint proceeding before the Board.

    (c) A request for informal Board assistance in securing outside professional mediation services under paragraph (a) or (b) of this section shall be submitted by letter duly authorized to be submitted to the Board by the requesting party. The request letter shall be addressed to the Director of the Board's Office of Public Assistance, Governmental Affairs, and Compliance, and shall include a concise description of the issues for which outside professional mediation services are sought. The Office of Public Assistance, Governmental Affairs, and Compliance shall contact the requesting party in response to such request within 14 days of receipt of the request.

    [FR Doc. 2016-18102 Filed 8-2-16; 8:45 am] BILLING CODE 4915-01-P
    SURFACE TRANSPORTATION BOARD 49 CFR Parts 1144 and 1145 [Docket No. EP 711; Docket No. EP 711 (Sub-No. 1)] Petition for Rulemaking To Adopt Revised Competitive Switching Rules; Reciprocal Switching AGENCY:

    Surface Transportation Board (the Board or STB).

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In this decision, the Board grants in part a petition for rulemaking filed by the National Industrial Transportation League seeking revised reciprocal switching regulations. The Board proposes new regulations governing reciprocal switching in Docket No. EP 711 (Sub-No. 1), which would allow a party to seek a reciprocal switching prescription that is either practicable and in the public interest or necessary to provide competitive rail service.

    DATES:

    Comments are due by September 26, 2016. Replies are due by October 25, 2016. Requests for ex parte meetings with Board Members are due by October 10, 2016 and meetings will be conducted between October 25, 2016 and November 14, 2016. Meeting summaries are to be submitted within two business days of the ex parte meeting.

    ADDRESSES:

    Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at “www.stb.dot.gov” at the “E-FILING” link. Any person submitting a filing in paper format should send an original and 10 paper copies of the filing to: Surface Transportation Board, Attn: Docket No. EP 711 (Sub-No. 1), 395 E Street SW., Washington, DC 20423-0001. Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

    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:

    Competitive access generally refers to the ability of a shipper or a competitor railroad to use the facilities or services of an incumbent railroad to extend the reach of the services provided by the competitor railroad. The Interstate Commerce Act makes three competitive access remedies available to shippers and carriers: The prescription of through routes, terminal trackage rights, and, as relevant here, reciprocal switching. Under reciprocal switching, or as it is sometimes called, “competitive switching,” an incumbent carrier transports a shipper's traffic to an interchange point, where it switches the cars over to the competing carrier. The competing carrier pays the incumbent carrier a switching fee for bringing or taking the cars from the shipper's facility to the interchange point, or vice versa, which is incorporated into the competing carrier's total rate to the shipper. Reciprocal switching thus enables a competing carrier to offer its own single-line rate to compete with the incumbent carrier's single-line rate, even if the competing carrier's lines do not physically reach a shipper's facility.

    On July 7, 2011, the National Industrial Transportation League (NITL) filed a petition to institute a rulemaking proceeding to modify the Board's standards for reciprocal switching. The Board took public comment and held a hearing on the issues raised in the petition. After consideration of the petition and the comments and testimony received, the Board is granting NITL's petition in part and instituting a rulemaking proceeding in Docket No. EP 711 (Sub-No. 1) to modify the Board's standards for reciprocal switching. Because we are proposing rules in a separate sub-docket, we will also close the docket in Docket No. EP 711.

    Statutory and Regulatory History

    Reciprocal switching can occur as part of a voluntary arrangement between carriers, or it may be ordered by the Board. The statutory provision governing the Board's authority to order reciprocal switching arrangements was first enacted by Congress in the Staggers Rail Act of 1980, Public Law 96-448, 94 Stat. 1895 (Staggers Act). Under the Staggers Act, the agency may require rail carriers to enter into reciprocal switching agreements, where it finds such agreements to be practicable and in the public interest, or where such agreements are necessary to provide competitive rail service. The rail carriers entering into such an agreement shall establish the conditions and compensation applicable to such agreement, but, if the rail carriers cannot agree upon such conditions and compensation within a reasonable period of time, the Board may establish such conditions and compensation. 49 U.S.C. 11102(c)(1) (emphasis added) (previously codified at 49 U.S.C. 11103(c) (1980)).

    In 1985, the Board's predecessor agency, the Interstate Commerce Commission (ICC), adopted regulations pertaining to competitive access, including reciprocal switching.1 Intramodal Rail Competition, 1 I.C.C.2d 822 (1985), aff'd sub nom Balt. Gas & Elec. v. United States, 817 F.2d 108 (D.C. Cir. 1987). Those regulations were adopted upon the filing of petitions from NITL and the Association of American Railroads (AAR) asking the agency to adopt rules that they had negotiated. A subsequent joint petition was filed by the AAR and the Chemical Manufacturers Association (CMA) that clarified the negotiated NITL-AAR agreement. The ICC adopted this agreed-upon proposal, with some modifications. Id. The regulations provided that reciprocal switching would only be prescribed if the agency determines that it is necessary to remedy or prevent an act that is contrary to the competition policies of 49 U.S.C. 10101 or is otherwise anticompetitive,” and “otherwise satisfies the criteria of . . . 11102(c). 49 CFR 1144.2(a)(1); 2 see also Intramodal Rail Competition, 1 I.C.C.2d at 830, 841.

    1 These regulations did not include a prescription for terminal trackage rights. The ICC stated that “there is no present need to adopt rules for prescription of terminal trackage rights. Such rights have rarely been sought in recent years, and we do not anticipate a surge of such cases.” Intramodal Rail Competition, 1 I.C.C.2d at 835.

    2 Formerly codified at 49 CFR 1144.5(a)(1). The regulations at 1144.2(a) also provide a list of relevant factors that the agency shall take into account in making this determination in subsection (a)(1), along with a “standing” requirement in subsection (a)(2).

    The following year, in 1986, the ICC decided its first reciprocal switching case under the new regulations. In Midtec Paper Corp. v. Chicago & North Western Transportation Co. (Midtec Paper Corp.), 3 I.C.C.2d 171 (1986), the ICC denied a shipper's petition for competitive access either via terminal trackage rights or reciprocal switching. In so doing, the ICC elaborated on the rules it adopted in Intramodal Rail Competition and their relation to the statute:

    [W]e think it correct to view the Staggers [Act] changes as directed to situations where some competitive failure occurs. There is a vast difference between using the Commission's regulatory power to correct abuses that result from insufficient intramodal competition and using that power to initiate an open-ended restructuring of service to and within terminal areas solely to introduce additional carrier service.

    Id. at 174. Thus, although “[u]nder [11102(c)], awarding reciprocal switching is discretionary,” the ICC explained that the key issue under its then-new regulations was whether the incumbent railroad “has engaged or is likely to engage in conduct that is contrary to the rail transportation policy or is otherwise anticompetitive.” Id. at 181. In assessing anticompetitive conduct, the essential questions for the ICC were whether the railroad had used its market power to extract unreasonable terms or had shown a disregard for the shipper's needs by furnishing inadequate service. Id. The shipper in Midtec Paper Corp. made general allegations about the carrier's rates and specific allegations about its service as evidence of anticompetitive conduct, but the ICC found no evidence that the rates to the complaining shipper were higher than other shippers and found the evidence of service inadequacies unconvincing. Id. at 182-85. Accordingly, the ICC rejected the request for reciprocal switching.

    On appeal of Midtec Paper Corp., the United States Court of Appeals for the District of Columbia Circuit upheld the application of the reciprocal switching regulations, including the anticompetitive conduct requirement, as a permissible exercise of the agency's discretion, stating:

    [The Intramodal] rules narrow the agency's discretion under section 1110[2] by describing, for example, the circumstances in which it would not grant discretionary relief—where there is no reasonable fear of anticompetitive behavior. We could not say in Baltimore Gas, and cannot say now, that the Commission's narrowing of its own discretion is manifestly inconsistent with the terms or the purposes of section 1110[2], or with the broader purposes of the Staggers Act.

    Midtec Paper Corp. v. United States, 857 F.2d 1487, 1500 (D.C. Cir. 1988) (statutory sections updated to reflect current numbering); see also Balt. Gas & Elec., 817 F.2d at 115 (stating that ICC's competitive access rules are “a reasonable accommodation of the conflicting policies set out in its governing statute.”).

    Since adoption of the agency's competitive access regulations in 1985, the regulations have not changed substantively. Few requests for reciprocal switching have been filed with the agency since then, and in none of those cases has the Board granted a request for reciprocal switching. See, e.g. , Midtec Paper Corp., 3 I.C.C.2d at 171; Vista Chem. Co. v. Atchison, Topeka & Santa Fe Ry., 5 I.C.C.2d 331 (1989).

    NITL's Petition and Comments Received

    In June 2011, the Board held a public hearing in Competition in the Railroad Industry, Docket No. EP 705, to explore the current state of competition in the railroad industry and possible policy alternatives to facilitate more competition, and asked parties to comment on issues pertaining to the Board's authority to impose reciprocal switching under 49 U.S.C. 11102(c), among other items. Soon after the hearing, NITL filed a petition for rulemaking in Petition for Rulemaking to Adopt Revised Competitive Switching Rules, Docket No. EP 711. NITL's petition, which it describes as “flow[ing] from the inquiry that the Board initiated in Ex Parte No. 705,” urges regulatory change and argues that the Board's reciprocal switching regulations have not promoted Congress's goal in enacting 11102(c), which was to encourage greater competition through reciprocal switching. (NITL Pet. 2, 17.) 3 NITL therefore proposes new regulations under which reciprocal switching by a Class I rail carrier would be mandatory if certain conditions were present. (Id. at 2-6.)

    3 Unless otherwise noted, all record cites are to submissions made in Petition for Rulemaking to Adopt Revised Competitive Switching Rules, Docket No. EP 711. Additionally, all references to comments and replies in Docket No. EP 711 refer to those received in response to the Board's July 25, 2012 decision.

    Specifically, NITL proposes regulations under which Board-ordered competitive switching by a Class I rail carrier would be mandatory if four criteria were met: (1) The shipper (or group of shippers) is served by a single Class I rail carrier; (2) there is no effective intermodal or intramodal competition for the movements for which competitive switching is sought; (3) there is or can be “a working interchange” between a Class I carrier and another carrier within a “reasonable distance” of the shipper's facility; and (4) switching is safe and feasible and would not unduly hamper the carrier's ability to serve existing shippers. (Id. at 7.)

    NITL's proposal includes several conclusive presumptions. With respect to the criterion that no effective competition exists, NITL proposes two presumptions. Specifically, a shipper would be conclusively presumed to lack effective intermodal or intramodal competition where either: (a) The rate for the movement for which switching is sought has a revenue-to-variable cost ratio of 240% or more (R/VC≥240), or (b) where the incumbent carrier serving the shipper's facilities for which switching is sought has handled 75% or more of the transported volumes of the movements at issue for the 12-month period prior to the petition requesting that the Board order switching. (Id. at 8.)

    With respect to the criterion that there is a working interchange within a reasonable distance, NITL also proposes two presumptions. Specifically, the presence of a working interchange within a reasonable distance of the shipper's facility would be presumed if either: (a) The shipper's facility is within the boundaries of a “terminal” of the Class I rail carrier, at which cars are “regularly switched,” or (b) the shipper's facility is within 30 miles of an interchange between the Class I rail carrier and another rail carrier, at which cars are “regularly switched.” (Id. at 8.)

    Following receipt of NITL's petition, the Board received a number of replies to the petition. The Board initially deferred consideration of NITL's petition pending a review of the comments received in Docket No. EP 705, in a decision served on November 4, 2011. In a decision served on July 25, 2012, the Board, without instituting a rulemaking proceeding, sought comments and further study of a number of issues with the NITL proposal, and subsequently received comments and replies. The Board also received oral testimony in a hearing held on March 25 and 26, 2014. For a list of the numerous parties that have participated in this proceeding at various stages, see the Appendix.4 Most shippers who commented support NITL's general proposal that the Board should revise its reciprocal switching regulations in order to make the remedy more widely available. Supporters of the NITL proposal contend that it would introduce more competition into the rail transportation marketplace. (E.g., ACC Comments 3-5; NITL Comments 6.) Pointing to the Canadian experience with “interswitching,” 5 supporters argue that the proposal is practicable. (E.g., Diversified CPC Comments 8-10; Highroad Comments 17-20; NITL Comments 59-63.) They also argue that the proposal could improve rail service generally, would not harm shippers ineligible for a switching order, and would not undermine rail network efficiency. (AECC Reply 7-11; Diversified CPC Comments 6; Highroad Comments 9-10; NITL Comments 56-63; NITL Reply 27-34.)

    4 To the extent this decision refers to parties by abbreviations, those abbreviations are listed in the Appendix.

    5 “Interswitching” refers to government-mandated reciprocal switching for shippers within a certain distance of a competing carrier's interchange.

    Some commenters generally support modifying the Board's competitive access regulations in a manner similar to NITL's proposal, but disagree over the precise changes the Board should adopt. For example, although some parties support using R/VC≥240 to determine effective competition (see, e.g., GLE Comments 8-10), others instead support the use of R/VC≥180 or a carrier's Revenue Shortfall Allocation Methodology benchmark (see Agricultural Parties Comments 17-18, 23; Diversified CPC Comments 12; Highroad Comments 16-17; Roanoke Cement Comments 11-12; USDA Comments 6). Similarly, although some parties appear to agree on having a limitation based on distance, they disagree on what a reasonable distance would be and the number of miles that should be used for a presumption. (See Agricultural Parties Comments 24; Highroad Comments 16; Roanoke Cement Comments 8.) In addition, some commenters state that they are not in favor of any rule that would require shippers to prove market dominance or prove that rates exceed a regulatory benchmark in order to obtain competitive access. (Diversified CPC Comments 9; Highroad Comments 16, 22; Roanoke Cement Comments 11.)

    Moreover, some shipper groups that generally support NITL's proposal acknowledge that their members would have few opportunities to qualify for reciprocal switching under the proposal. (ARC Comments 13; Agricultural Parties Reply 4-5.) Additionally, many shippers or shipper groups question whether the NITL proposal would in fact increase competition or have an appreciable impact on rates. Olin contends that NITL's proposal is flawed because it is “premised on the false assumption that the railroads are actually interested in competing for business.” (Olin Comments 6.) The Chlorine Institute argues that NITL's proposal would not ensure that any rate offered by a second carrier would be reasonable or competitive. (Chlorine Institute Comments 1-2.) Agricultural Parties, though not opposing NITL's proposal, state that the Board “should not conclusively presume that access to an alternative Class I railroad via mandatory switching will result in effective competition,” or that any competition that occurs would ensure reasonable rates and service. (Agricultural Parties Comments 15 (emphasis in original).) According to Joint Coal Shippers, “any assumption that the availability of mandatory switching constitutes de facto competition would constitute a significant and unjustifiable harm to captive shippers.” (Joint Coal Shippers Comments 11.) Similarly, ARC maintains that shifting freight from one railroad to a potential competitor does not guarantee any reduction in rates. (ARC Comments 8.)

    Rail carriers and rail interests oppose NITL's proposal for a variety of reasons. They contend that the proposal is unnecessary because shippers are concerned more about rates than access to additional rail carriers, as revealed in the testimony given in Docket No. EP 705. (CSXT Comments 21-23; KCS Comments 3-7.) Moreover, rail carriers argue that the proposal is unwise because it would favor a small group of shippers to the detriment of others. (AAR Comments 5-6, Joint V.S. Eakin & Meitzen 3-5; CEI Reply 3; NSR Reply 28-30.) Additionally, they contend that the proposal would have serious, adverse effects on rail service, carrier revenues, network efficiency, and incentives to invest in the rail network. (See, e.g., CEI Reply 3; CSXT Comments 24-48; KCS Comments 14-16; NSR Comments 79-80.) In response to some shippers' claim that the Canadian interswitching model demonstrates the practicability of the NITL proposal, railroads argue that differences between the Canadian and U.S. rail networks make the Canadian regulatory regime an unreliable guide as to what would happen under NITL's proposal. (AAR Reply 31-32; CSXT Reply 42-47; KCS Reply 30-33; CEI Reply 7; UTU-NY Reply 3.)

    Rail carriers and carrier interests also argue that the NITL proposal is legally flawed. They contend that it is unlawful because Congress “ratified” the Midtec Paper Corp. standard of anticompetitive behavior when Congress re-enacted the reciprocal switching language in 11102 without change in the ICC Termination Act of 1995 (ICCTA), Pub. L. 104-88, 109 Stat. 803. (CSXT Comments 11-21; NSR Comments 23-28.).

    Rail interests also question the practicality of NITL's proposal, argue that there are too many unknowns regarding its parameters for it to be easily implemented, and contend that these unknowns will lead to increased litigation before the Board. These unknowns, according to the carriers, include matters such as access pricing, agreement terms, yard and line capacity, service levels, routing issues, labor protection, environmental impacts, general switching standards and procedures, whether the 75% presumption for lack of effective competition applies regardless of price level or availability of other modes of transportation, how the 30-mile limit would be calculated (specifically, whether it would be route miles or radial miles), and whether qualifying for mandatory switching lasts in perpetuity. (See, e.g., CSXT Comments 2, 54-57; KCS Comments 17-19.) Additionally, they argue that NITL did not define several terms, including “terminal,” “regular switching,” “safe and feasible operations,” what it would mean to “unduly hamper” the ability of a carrier to serve shippers, and the meaning of the phrase “shipper (or group of shippers) served by a single Class I carrier.” (CSXT Comments 49; KCS Comments 19; NSR Comments 64.) NSR also argues that NITL's presumptions are not conclusive because, under NITL's proposal, if one of the presumptions does not apply, the shipper can still litigate the issue before the Board. (NSR Comments 40.)

    Commenters also disagreed on the impact the proposal would have on the railroad industry. Based on analyses of waybill data, supporters of NITL's proposal argue that the proposal would affect a relatively modest amount of traffic and carrier revenue. (DOT Comments 2-3; NITL Comments 43; NITL Reply 23; USDA Comments 10-11.) NITL estimates that 4% of carloads on the networks of the four larger Class I rail carriers (BNSF, CSXT, NSR, and UP) under “full competition” 6 would be subject to potential reciprocal switching under its proposal. (See NITL Comments 43.) The railroads generally argue that NITL's proposal is too vague to derive proper estimates. (AAR Comments 10-13; BNSF Comments 1; NSR Comments 5.) Given the data available, AAR surmises that NITL's proposal could affect approximately half of the stations currently served by only one Class I carrier. (AAR Comments 13.) DOT estimates, based on the four Class I railroads it examined, that NITL's proposal would affect 2.1% of revenue and 1.3% of carloads. (DOT Comments 2-3.)

    6 NITL describes “full competition” as a scenario where the incumbent and competing carriers compete vigorously to win the traffic after a reciprocal switch arrangement is put in place, resulting in a rate that is “equal to the average `competitive' rate, for that carrier, commodity and mileage block.” This full competition rate is contrasted with the broader “reduced competition” rate, in which a railroad might lower a shipper's rate in response to the possibility of being required to provide reciprocal switching under the NITL's proposal, but not down to the maximum competitive rate. (NITL Hearing Presentation, Slide 15 (filed Mar. 25, 2014).)

    The Need To Revisit the Board's 11102(c) Interpretation and Reciprocal Switching Regulations

    Many commenters in both this proceeding and in Docket No. EP 705 expressed the view that the agency's decision to narrow its discretion under 11102(c)—by requiring anticompetitive conduct—has proven, over time, to set an unrealistically high bar for shippers to obtain reciprocal switching, as demonstrated by the fact that shippers have not filed petitions for reciprocal switching in many years, despite expressing concerns about competition.7 The sheer dearth of cases brought under 11102(c) in the three decades since Intramodal Rail Competition, despite continued shipper concerns about competitive options and quality of service, suggests that part 1144 and Midtec Paper Corp. have effectively operated as a bar to relief rather than as a standard under which relief could be granted.

    7See, e.g., Agricultural Parties Comments 4; USDA Comments 2. See also CURE Comments 11-12, Apr. 12, 2011, Competition in the R.R. Indus., EP 705; E.I. du Pont de Nemours & Co. Comments 12, Apr. 12, 2011, Competition in the R.R. Indus., EP 705; USDA Comments 5, Apr. 12, 2011, Competition in the R.R. Indus., EP 705.

    In other contexts where the Board has observed that important available remedies have become dormant, the agency has examined the underlying regulations and pursued modifications, where appropriate. See, e.g., Simplified Standards for Rail Rate Cases, EP 646 (Sub-No. 1) (STB served Sep. 5, 2007) (revising the Board's regulations for smaller rate disputes). For this reason alone, it is appropriate to revisit the agency's regulations and precedent with regard to reciprocal switching.

    But there have also been many changes that have occurred in the rail industry since Intramodal Rail Competition and Midtec Paper Corp. In the 1980s, the rail industry was reeling from decades of inefficiency and serial bankruptcies. The significant changes since then include, but are not limited to, the improved economic health of the railroad industry and increased consolidation in the Class I railroad sector. In its report on the recently enacted Surface Transportation Board Reauthorization Act of 2015, Pub. L. 114-110, 129 Stat. 2228, the Senate Committee on Commerce, Science, and Transportation noted that “[t]he U.S. freight railroad industry has undergone a remarkable transformation since the enactment of the Staggers Rail Act of 1980,” and elaborated that “the industry has evolved and the railroads' financial viability has drastically improved.” S. Rep. No. 114-52, at 1-2 (2015). Particularly relevant to reciprocal switching, the consolidation of Class I carriers and the creation of short lines that may have strong ties to a particular Class I likely reduces the chance of naturally occurring reciprocal switching as carriers seek to optimize their own large networks. While this is not in itself problematic, it could lead to reduced competitive options for some shippers and thus should be considered. Likewise, to avoid obsolescence of the Board's regulatory policies, we must consider the better overall economic health of the rail industry as well as increased productivity and technological advances.8

    8 Moreover, the increase in access provided by this regulation also addresses the mandate from the President of the United States to federal agencies to consider “pro-competitive rulemaking and regulations” and “eliminating regulations that create barriers to or limit competition.” Exec. Order No. 13,725, 81 FR 23,417 (Apr. 15, 2016).

    For these reasons, the Board concludes that the agency's regulations and precedent, in which the public interest and competition statutory bases for reciprocal switching were consolidated into a single competitive abuse standard, makes less sense in today's regulatory and economic environment. Therefore, to the extent that the ICC adopted a single anticompetitive act standard in awarding reciprocal switching under 11102(c) in Intramodal Rail Competition and Midtec Paper Corp., the Board proposes to reverse that policy. However, before turning to the issue of what revised reciprocal switching regulations should entail, we will first address the scope of the Board's authority to revise its interpretation of 11102(c) and adopt new reciprocal switching regulations.

    The Board's Authority To Revise Its Interpretation of 11102(c) and Adopt New Reciprocal Switching Regulations

    As discussed above, the Board has broad discretion under 11102(c) to require carriers to enter into reciprocal switching arrangements when they are practicable and in the public interest or necessary to provide competitive rail service. The agency's primary duty in exercising its statutory reciprocal switching discretion is to ensure it does so in a manner that is not “manifestly contrary” to the statute. Midtec Paper Corp. v. United States, 857 F.2d at 1500.

    Even though it adopted one set of regulations in 1985, the agency retains broad authority to revise its statutory interpretation and the resulting regulations. It is an axiom of administrative law that an agency's adoption of a particular statutory interpretation at one point in time does not preclude later different interpretations. See, e.g., Hinson v. NTSB, 57 F.3d 1144, 1149-50 (D.C. Cir. 1995). If it changes course, an agency must provide “a reasoned analysis indicating that prior policies and standards are being deliberately changed and not casually ignored,” Grace Petroleum Corp. v. FERC, 815 F.2d 589, 591 (10th Cir. 1987) (citing Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970), and its new interpretation must be permissible under the governing statute, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 865 (1984).

    In proposing new reciprocal switching rules, the Board has provided a reasoned explanation for departing from past precedent and has explained why the rules are a permissible exercise of its jurisdiction under 11102. The agency is free to do so because nothing in the plain language of 11102 [then 11103] required the agency in 1985 to adopt the anticompetitive act framework proposed by AAR and NITL. Neither of the two statutory bases for reciprocal switching—practicable and in the public interest, or necessary to provide competitive rail service—mandates a finding that a rail carrier has engaged in anticompetitive conduct. Although the ICC chose to order reciprocal switching only when there had been a “competitive failure,” the agency appeared to recognize that the anticompetitive act standard was merely one approach of several it could take. Midtec Paper Corp., 3 I.C.C.2d at 174. The fact that the ICC chose (based largely on stakeholder negotiations) 9 the anticompetitive conduct approach over other approaches did not eliminate those other interpretations from later adoption. As the court in Baltimore Gas & Electric made clear, given the broad statutory language and conflicting rail transportation policies, the agency has a wide range of options for competitive access regulation. 817 F.2d at 115 (observing that the complainant's open access statutory interpretation, rejected by the ICC, “might well reflect sound economics, and might—we do not decide—be a reasonable interpretation of the statute. Certainly, however, it is not the only reasonable interpretation, because as we have noted, the statutory directives under which the ICC operates do not all point in the same direction.”). In response to NITL's petition, CSXT and NSR argue that the Board lacks the authority to change its reciprocal switching rules because Congress “ratified” the Midtec Paper Corp. standard when it reenacted the reciprocal switching language in ICCTA. (CSXT Comments 11-21; NSR Comments 23-28.) Legislative ratification (also known as legislative reenactment) is a doctrine that examines whether Congress' decision to leave undisturbed a statutory provision that an agency has interpreted in a particular manner can be read as tacit approval of the interpretation, thereby giving the agency's interpretation “the force and effect of law.” Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir. 1989). Recognizing that Congressional reenactment of the same statutory language does not ordinarily “freeze all pre-existing agency interpretations of language, forever after immunizing them from change,” Bernardo v. Johnson, 814 F.3d 481, 498 (1st Cir. 2016), courts apply the doctrine cautiously. The doctrine applies “[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation . . . .” United States v. Bd. of Comm'rs, 435 U.S. 110, 134 (1978).

    9 Having encouraged rail carriers and shippers to work together on implementation issues arising from the Staggers Act, one important basis for the ICC's competitive access regulations was to give as much effect as possible to proposed rules that had been negotiated by AAR, NITL, and CMA. Intramodal Rail Competition, 1 I.C.C.2d at 822-23 (“In adopting the regulations set forth below, we have attempted to preserve to the maximum extent possible the product of negotiation and compromise among the major carrier and shipper interests.”) Those negotiated rules included the concept that competitive access would only be available upon a finding that it was necessary to remedy or prevent an anticompetitive act. See 50 FR 13,051 (1985).

    The arguments offered by NSR and CSXT do not persuade us that the Board lacks authority to alter its interpretation of 11102. NSR suggests that ratification requires only that Congress was aware of an issue and reenacted the statutory provision without change, but NSR ignores the searching analysis ordinarily performed by courts to determine whether there was some affirmative expression of approval by Congress. (See NSR Comments 23-28.) Courts seek to “ascertain whether Congress has spoken clearly enough to constitute acceptance and approval of an administrative interpretation. Mere reenactment is insufficient.” Isaacs, 865 F.2d at 468 (stating that Congress must have “expressed approval” of an agency interpretation by taking “an affirmative step to ratify it”); Ass'n of Am. R.R.s v. ICC, 564 F.2d 486, 493 (D.C. Cir. 1977) (explaining that the doctrine requires awareness by Congress plus some affirmative indication to preclude subsequent reinterpretation).10 Indeed, the consensus upon which ratification is based must be “so broad and unquestioned” as to permit an assumption that Congress knew of and endorsed that interpretation. Jama v. Immigration & Customs Enf't, 543 U.S. 335, 349 (2005). Application of the doctrine is particularly difficult when the legislative term is ambiguous or subject to an agency's discretion. See Bernardo, 814 F.3d at 488.

    10 Even in those cases where the courts have not expressly stated that applicability of ratification requires a review of Congressional intent, many courts have nonetheless performed such a review. See, e.g., Lindahl v. OPM, 470 U.S. 768, 782 n.15 (1985) (explaining that the court need not rely on “bare force of this assumption” regarding reenactment because legislative history indicated that Congress intended interpretation to continue); FDIC v. Phila. Gear Corp., 476 U.S. 426 (1986) (stating that the legislative history indicated that Congress intended to include the FDIC's prior interpretation).

    Here, while Congress in ICCTA reenacted the reciprocal switching provision without change, CSXT and NSR do not cite any legislative history in which Congress even mentioned the agency's interpretation of former 11103 (now 11102), much less voiced approval for it. The absence of any such affirmation or discussion by Congress, combined with judicial recognition that reciprocal switching is a matter of agency discretion, renders the ratification doctrine inapplicable here.

    Nor have NSR and CSXT persuaded us that the doctrine of ratification can be used to wholly eliminate the agency's broad policy discretion, particularly where that broad discretion and the potential for varying, reasonable interpretations of 11102 have been judicially recognized prior to legislative reenactment. In reviewing the competitive access rules adopted in Intramodal Rail Competition, the D.C. Circuit Court of Appeals recognized that the agency's exercise of its reciprocal switching discretion was a “reasonable accommodation of the conflicting policies set out in its governing statute.” Balt. Gas & Elec., 817 F.2d at 115 (noting that there were “fifteen different and not entirely consistent goals” in the rail transportation policy of 10101 and rejecting the argument that there was only one reasonable interpretation). Likewise, the Midtec Paper Corp. court found that the agency had “narrowed its own discretion in a manner that was not manifestly inconsistent with [ 11102] or the broader purposes of the Staggers Act.” If the ICC was able to narrow its discretion, by implication, it must also be able to broaden its discretion, so long as the agency does not exceed the limitations set forth in the statute. Midtec Paper Corp. v. United States, 857 F.2d at 1500 (“[T]he Commission is under no mandatory duty to prescribe reciprocal switching where it believes that doing so would be unwise as a matter of policy. . . . In order to support its exercise of discretion, the agency must provide a reasoned analysis that is not manifestly contrary to the purposes of the legislation it administers.”).11 Given that the ICC in Intramodal Rail Competition and Midtec Paper Corp. did not say that its anticompetitive conduct standard was required by the statute, and given the absence of any suggestion that Congress intended to limit the agency's discretion with regard to reciprocal switching, the Board cannot conclude that the doctrine of ratification (even if it were applicable) would compel this result. (See NITL Reply 45 (“To the extent there was any `ratification,' it was to ratify the very discretion that Congress gave the Board in the statute's original iteration.”); ACC Reply 5 (“Congress's failure to change 11102(c) in ICCTA indicates, at most, nothing more than Congress's view that the 1985 competitive access rules were within the realm of permissible uses of ICC competitive switching discretion.”)).

    11 In Midtec Paper Corp., the agency likewise recognized its own discretion: “Under [former] 11103(c), awarding reciprocal switching is discretionary. Nevertheless, under the rules adopted in Intramodal, we will award that relief if significant use will be made of it, and when switching is necessary to remedy or prevent an act that is either contrary to the competition policies of 49 U.S.C. 10101a or otherwise anticompetitive.” 3 I.C.C.2d at 176.

    New Reciprocal Switching Regulations

    Having determined that the ICC's interpretation of 11102, including its anticompetitive conduct requirement, may no longer be appropriate and that the agency has the authority to revise its reciprocal switching regulations, the Board must appropriately balance the competing policy considerations in proposing new regulations. To do so, we will first examine the concerns that we have with some aspects of the proposed regulations put forth by NITL in Docket No. EP 711. We will then discuss the Board's proposed regulations in Docket No. EP 711 (Sub-No. 1), including how they differ from both NITL's approach and the agency's current regulations.

    Docket No. EP 711

    The Board has reviewed NITL's petition and the numerous comments and testimony in this docket. We conclude that NITL's proposal, while a valuable starting point for new reciprocal switching regulations, does not, on its own, strike the appropriate policy balance. The Board is chiefly concerned that NITL's approach, with its substantial reliance on conclusive presumptions, would lead to problems regarding fairness among different categories of shippers. The Board prefers a reciprocal switching standard that makes the remedy more equally available to all shippers, rather than a limited subset of shippers, and that would allow the Board to examine reciprocal switching on a case-by-case basis.

    NITL's use of multiple presumptions raises questions of fairness in terms of who would be able to take advantage of the NITL proposal and who would not. Whatever presumptions are adopted—whether those proposed by NITL or others—lines would be drawn that would favor some shippers (for example, those within a 30-mile radius of an interchange) over other shippers (for example, those outside the 30-mile radius). Under NITL's proposal, some shippers who want reciprocal switching might not be eligible for improved access to reciprocal shipping because they do not meet the criteria.12 Conversely, not all shippers who qualify under the presumptions would necessarily want or need reciprocal switching. Put more simply, basing the availability of reciprocal switching primarily on conclusive presumptions based on bright-line cut-offs would make this remedy both overinclusive and underinclusive.

    12 We recognize that, under NITL's proposal, a shipper could still seek to obtain reciprocal switching by proving the criteria without use of the conclusive presumptions. (NITL Pet. 35-36; NITL Reply 35-36.)

    The record here suggests that shippers of certain commodities, particularly chemical shippers, would be the major beneficiaries of the conclusive presumptions proposed by NITL, as these shippers move traffic with higher R/VC ratios and thus would be more likely to meet the R/VC≥240 presumptions. (See, e.g., ACC Comments 4-5 (stating that more than half of all chemical traffic has R/VC ratios above 240% and that “[c]hemical shipments have the largest potential savings of any commodity group” under the proposal).) A significant number of chemical shippers are also located within 30 miles of multiple railroads. In contrast, shippers of other commodities, particularly agricultural shippers, would tend not to qualify under the conclusive presumptions proposed by NITL, as agricultural shippers tend to be located in more remote locations that are generally only served by one railroad, and thus are less likely to be within 30 miles of an interchange. (See Agricultural Parties Reply 3 (“[L]ess than 6% (and probably substantially less) of [agricultural commodities] . . . would be shipped to and from facilities that met the conclusive presumptions under the Proposal.”); USDA Comments 5 (noting difficulties that many agricultural shippers in the West would have meeting the presumptions); see also ARC Comments 13 (same).)

    Our concerns about the issue of fairness are reinforced by comments regarding the potential impacts of NITL's proposal on shippers that would not be eligible under the proposal's presumptions. NITL maintains that the impacts on ineligible shippers would be “nil,” arguing that railroads would be unlikely to raise rates on such shippers because the carriers are presumably already maximizing revenues on this ineligible traffic. (NITL Comments 56-57.) 13 In addition to AAR (AAR Comments 17), however, Agricultural Parties also suggest that there might be rate impacts on ineligible shippers, stating that “the fact that so few NGFA Commodity shippers could qualify for competitive switching could expose the NGFA Commodity shippers as a class to rate increases imposed to offset the reductions obtained by other rail shippers . . . as a result of the establishment of competitive switching for their facilities.” (Agricultural Parties Comments 23.) Further, some commenters argue that even if rail carriers do not raise the rates of those shippers that are not eligible, there could be other negative impacts on service and investment. (AAR Comments 17; KCS Reply 26 (stating that ineligible shippers would suffer service problems and be competitively disadvantaged compared to their competitors who are eligible); UP Comments 66 (“[T]he most significant impacts of NITL's proposal on shippers that cannot use forced switching would likely be the impacts on their rail service and on competition in markets for the goods they ship or receive.”).)

    13 UP also argues that widespread rate increases would be unlikely. (UP Comments 66.)

    After reviewing these comments, we are concerned that reciprocal switching based on the proposed conclusive presumptions could have adverse effects on categories of shippers not eligible under NITL's proposal. If NITL's proposal places downward pressure on the rates of those shippers who are eligible, then there may be an incentive for railroads that cannot make up any shortfall to raise the rates of ineligible shippers or degrade service in an effort to cut costs. While these incentives might exist to some degree with any increase in reciprocal switching (a remedy expressly authorized by Congress), we are concerned about the effects on categories of shippers who have less access to relief under a presumption-based approach.

    For these reasons, the Board prefers a reciprocal switching standard that makes the remedy more equally available to all shippers, rather than a limited subset of shippers. Imposing reciprocal switching on a case-by-case basis would also allow the Board a greater degree of precision when mandating reciprocal switching than is afforded under the approach advanced by NITL. We believe such an approach would allow the Board to better balance the needs of the individual shipper versus the needs of the railroads and other shippers. Therefore, although the Board's proposal is guided in many instances by NITL's proposal, we are deviating from NITL's proposal in several respects. We are granting NITL's petition to institute a rulemaking in part, closing the proceeding in Docket No. EP 711, and instituting a rulemaking proceeding in Docket No. EP 711 (Sub-No. 1). The Board's proposal is outlined below.

    Docket No. EP 711 (Sub-No. 1)

    In developing new reciprocal switching regulations, we begin by looking back to Congress' directive, as set forth in the statute (11102(c)). As noted, we must also weigh and balance the various rail transportation policy (RTP) factors enumerated in 49 U.S.C. 10101. See, e.g., Intramodal Rail Competition, 1 I.C.C.2d at 823.

    It has long been the position of the agency and the courts that 11102 (and other Staggers Act routing provisions) were not designed to provide shippers with full, open access routing. See, e.g., Midtec Paper Corp. v. United States, 857 F.2d at 1507 (there is no indication that Congress intended the agency to prescribe reciprocal switching whenever it would enhance competition); Review of Rail Access & Competition Issues, EP 575, slip op. at 6 (STB served Apr. 17, 1998) (noting that statute requires a showing of need for access remedies and does not permit such remedies merely “on demand”).14 However, 11102 was clearly intended to empower the agency to encourage the availability of reciprocal switching when appropriate. H.R. Rep. No. 96-1035 at 67 (1980); see also Midtec Paper Corp. v. United States, 857 F.2d at 1500-01 (acknowledging Congress' desire for the agency to “encourage” reciprocal switching). As explained above, 11102(c) sets out two prongs by which the Board can order reciprocal switching: where reciprocal switching is practicable and in the public interest, or where reciprocal switching is necessary to provide competitive rail service. The ICC, through its decisions in Intramodal Rail Competition and Midtec Paper Corp., essentially consolidated those two prongs into a single standard, which requires shippers to demonstrate anticompetitive conduct by the railroad. For reasons discussed above, we conclude that the ICC's consolidation of these two prongs is overly restrictive in today's environment.15

    14See also Balt. Gas & Elec., 817 F.2d at 115 (“We see not the slightest indication that Congress intended to mandate a radical restructuring of the railroad regulatory scheme [by making a bottleneck monopoly impossible through mandated open access] so as to parallel telecommunications regulation”); Cent. Power & Light Co. v. S. Pac. Transp. Co., NOR 41242, et al., slip op. at 5 (STB served Dec. 31, 1996) (“Congress chose not to provide for the open routing that shippers seek here.”).

    15 NITL's proposal also combined the two criteria. (NITL Pet. 67.)

    In determining whether to adopt competitive new access rules, the Board must also weigh and balance the various rail transportation policy (RTP) factors enumerated in 49 U.S.C. 10101. See, e.g., Intramodal Rail Competition, 1 I.C.C.2d at 823.16 Here, there are several RTP factors relevant to our analysis, including relying on and encouraging effective competition (10101(1), (4), (5), (6)), promoting a safe and efficient rail transportation system by allowing carriers to earn adequate revenues (10101(3)), promoting public health and safety (10101(8)), avoiding undue concentrations of market power (10101(12)), and providing fair and expeditious handling of issues (10101(2), (15).

    16 It is well established that the Board's statutory directives are often conflicting or contradictory. See Mkt. Dominance Determinations—Prod. & Geographic Competition, 5 S.T.B. 492, 497 (STB served Apr. 3, 2001) (acknowledging that the RTP “contains 15 separate and sometimes conflicting policy goals that together establish the framework for regulatory oversight of the rail industry. No special significance attaches to the order in which these various policy goals are set out in the statute.”); see also Ass'n of Am. R.R.s v. STB, 306 F.3d 1108, 1111 (D.C. Cir. 2002); Balt. Gas & Elec., 817 F.2d at 115. Nevertheless, we have and will continue to strive to balance the competing statutory directives appropriately.

    We believe that one way to reinterpret 11102(c) and undo the restriction on access to reciprocal switching is to adhere more closely to the statutory language than the ICC did, thereby broadening the framework under which reciprocal switching could be justified. By explicitly recognizing Congress' decision to provide two distinct pathways to obtain reciprocal switching—practicable and in the public interest or necessary to provide competitive rail service—we would enhance the ability of shippers and carriers to make a case for (or against) reciprocal switching in a particular instance. Accordingly, we propose a two-pronged approach, pursuant to which the Board would have the ability to order reciprocal switching either when it is practicable and in the public interest or when it is necessary to provide competitive rail service. The two-pronged approach would be consistent with the RTP in weighing issues such as competition and market power, rail service needs (for complaining and non-complaining shippers), the impact on the involved carriers, and whether specific facilities are appropriate for particular switching operations.

    The proposed regulations would revise the Board's reciprocal switching rules to promote further use and availability of reciprocal switching, but—consistent with the agency's and the courts' long-established precedent—they would not provide shippers unfettered open access to carriers and routes. Indeed, one of the Board's concerns is the potential for operational challenges in gateways and terminals that are vital to the fluidity of the rail network. Most major gateways and terminals (including St. Louis, Memphis, Houston, Minneapolis-St. Paul, Los Angeles, and Kansas City, to name a few) are served by at least two Class I carriers. In Chicago, the most important hub in the rail network, there are six Class I carriers, as is also the case in New Orleans. As has been demonstrated by real-world instances, operational issues in the gateways and terminals can easily spread to other parts of the rail network. The service crises of the late 1990s 17 and the winter of 2013-2014 18 are stark reminders that local congestion can turn quickly into regional and national backlogs, affecting shippers of all commodities. The Board's proposal provides for a case-by-case review, in which the Board can evaluate a switching arrangement based on the specific circumstances at hand. In this way, the Board can exercise a greater degree of precision when mandating reciprocal switching, thus mitigating the chance of operational challenges in a given area.

    17 The service crisis of the late 1990s, for example, began in the Houston area and quickly spread throughout the western United States. See Joint Pet. for Service Order, 2 S.T.B. 725, 729-30 & n.4 (1997); Union Pac. Corp.—Control & Merger—S. Pac. Rail Corp., 3 S.T.B. 1030, 1036 (1998).

    18 The Board recognized the “longstanding importance of Chicago as a hub in national rail operations and the impact that recent extreme congestion in Chicago has had on rail service in the Upper Midwest and nationwide.” U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4), slip op. at 6 (STB served Dec. 30, 2014).

    Under the proposal, the availability of reciprocal switching would not be presumed based on one-size-fits-all criteria, but instead would be based on factual determinations derived from the evidence provided by the parties. Pursuant to the RTP, we believe this approach would be fairer than both the current regulations as well as the NITL proposal in EP 711. Specifically, as discussed below, a particularized analysis is warranted.

    In this notice of proposed rulemaking, we propose to remove references to reciprocal switching from 49 CFR part 1144 (which also governs the prescriptions of through routes) and to create a new Part 1145 to govern reciprocal switching under either of the two statutory prongs provided in 11102(c). The proposed regulations can be found in below.

    Practicable and in the Public Interest Prong

    The first prong under which a party could obtain a reciprocal switching prescription is by showing that the proposed switching would be practicable and in the public interest. The ICC has previously explained that there is no mechanical test for determining what is practicable and in the public interest, and the totality of the circumstances should be considered. See Midtec Paper Corp. v. Chicago & NW. Transp. Co., 1 I.C.C.2d 362, 363-64 (1985). “In determining what is `in the public interest,' the Commission considers not only the interests of particular shippers at or near the terminal in question, but also the interests of the carriers and the general public.” Del. & Hudson Ry. v. Consol. Rail Corp., 367 I.C.C. 718, 720 (1983) (citing Jamestown Chamber of Commerce v. Jamestown, Westfield & Nw. R.R., 195 I.C.C. 289 (1933)).

    The Board proposes three criteria that shippers must satisfy to demonstrate that reciprocal switching is practicable and in the public interest: (1) That the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by Class I rail carrier(s); (2) that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching; and (3) that the potential benefits from the proposed switching arrangement outweigh the potential detriments. In making this third determination, in addition to questions about operational feasibility and safety, the Board may consider any relevant factor including, but not limited to: The efficiency of the route, access to new markets, the impact on capital investment, the impact on service quality, the impact on employees, the amount of traffic that would use the switching arrangement, the impact on the rail transportation network, and the RTP factors. Notwithstanding these three showings, however, the Board will not find a switching arrangement to be practicable and in the public interest if either rail carrier shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.

    The non-exhaustive list of factors included within the proposed regulation provides a sufficient basis for parties to argue that a switching prescription would or would not be practicable and in the public interest. The Board will not attempt to formalize the precise showings that parties would make in a given case to address the third factor or the rail carrier arguments against switching, which are all intended to be flexible. However, parties should present these factors to the Board with specificity relating to the factual circumstances of each case. Individual reciprocal switching proceedings are not an appropriate forum to litigate, for example, the general merits of reciprocal switching as a statutory remedy, the general health of the rail industry, or revenue adequacy. Accordingly, we expect that parties' presentations would be focused on the particular proposed switching arrangement and would not attempt to litigate broad regulatory policies. In designing case-specific presentations on these issues, we believe that the Board's current petition for exemption process is instructive. 49 U.S.C. 10502. Under the petition for exemption process, the Board considers whether the application of a particular statutory provision is necessary to carry out the RTP with regard to a particular action. See, e.g., Cal. High-Speed Rail Auth.—Construction Exemption—in Fresno, King, Tulare, & Kern Ctys, Cal., FD 35724 (Sub-No. 1) slip op. at 12-14 (STB served Aug. 12, 2014). This analysis does not entail going factor by factor through the RTP, but instead addresses only those RTP factors that are relevant to the specific exemption proceeding. Nor does it involve large-scale litigation over industry-wide policy determinations. See id.

    Necessary To Provide Competitive Rail Service Prong

    The second prong under which a party could obtain a reciprocal switching prescription is by showing that the proposed switching is necessary to provide competitive rail service. Again, the Board proposes three criteria that shippers must satisfy: (1) That the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by a single Class I rail carrier; (2) intermodal and intramodal competition is not effective with respect to the movements of the shipper(s) and/or receivers(s) for whom switching is sought; and (3) there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching. Again, notwithstanding these three showings, the Board will not find a switching arrangement to be practicable and in the public interest if either rail carrier shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.

    Feasibility, Safety, and Service

    Under both prongs, either of the railroads that would potentially be subject to a reciprocal switching order may attempt to show as an affirmative defense that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers. If a railroad carries its burden in making this showing, the Board will not order reciprocal switching. In addressing these issues, parties might present evidence regarding: Traffic density; the line's capacity; yard capacity; right-of-way widths; grade separations; drainage; hazardous materials; network effects; and characteristics of the surrounding area (e.g., urban, rural, industrial). These forms of evidence are examples only, and parties may also present other evidence that is relevant to feasibility, safety, and service quality.

    Removal of Anticompetitive Conduct Requirement

    Unlike the agency's current regulations, neither prong of these proposed regulations requires a showing of anticompetitive conduct. But removal of this requirement does not create “open access” or “on demand” routing.19 Under the Board's proposal, reciprocal switching would not be “open” to any party “on demand,” and any request under this section would be subject to a detailed review. In particular, shippers would be required (as is the case today) to initiate a proceeding with the Board and bear the burden of showing that reciprocal switching is needed. There would be no presumption of need.20

    19See, e.g., Union Pac. Corp.—Control & Merger—S. Pac. Rail Corp., 3 S.T.B. 1030, 1032 (1998) (stating that the Board's governing statute does not provide for open access).

    20 Section 11102(c) does not set out a time period for how long a reciprocal switching prescription would last. Accordingly, the Board proposes that a prescription would last for as long as the criteria for each prong are met, unless otherwise ordered by the Board in a particular circumstance, with parties free to petition the Board for reopening if there are substantially changed circumstances.

    Additional Aspects of Proposed Rules

    Several of the factors in each of these prongs stem from NITL's proposal. For example, both prongs of the Board's proposal require a showing that there is or can be a working interchange within a reasonable distance, as did NITL. And both provide that a switching arrangement would not be established if either rail carrier shows that the proposed switching is not feasible or is unsafe, or that such switching would unduly hamper the ability of the carrier to serve its shippers. There are several additional aspects of the rules that differ from NITL's proposal, which we describe in greater detail below. However, the most notable is the absence of conclusive presumptions; as previously described, the Board would make an individualized determination on the facts of each case under the proposed rules.

    We will now address specific aspects of the proposed rules, including, where relevant, how the proposal deviates from NITL's proposal.

    Class I Carriers

    Under both prongs of the proposed regulations, prescriptions of reciprocal switching would be limited to instances in which both the incumbent railroad and the competing railroad are Class I carriers. NITL's proposal specifically limited the proposed remedy to situations where the incumbent railroad was a Class I carrier by requiring that the party seeking switching be “served by rail only by a single, Class I rail carrier (or a controlled affiliate).” (NITL Pet. 67.) Under NITL's proposal, reciprocal switching would be ordered between this Class I rail carrier and “another carrier.” NITL states that its proposal thus does not distinguish between Class I and Class II or III carriers vis-à-vis the competing carrier. (NITL Pet. 53.)

    The only commenter to address this question in detail, ASLRRA, states that, “if the Board decides to adopt the NITL petition, it should expressly limit the application to situations in which no Class II or Class III railroad participates at any point in the movement of the traffic whether or not the small railroad appears on the waybill.” (See ASLRRA Reply 1-4; Testimony of Richard F. Timmons 4-6, Mar. 26, 2014.) The record contains little information on the potential effects on the industry that would result from making Class II and/or Class III rail carriers subject to reciprocal switching prescriptions.

    Although the ICC rejected a request to exempt smaller carriers from its reciprocal switching regulations in Intramodal Rail Competition, 1 I.C.C.2d at 835-36, the Board is proposing in this decision to limit the availability of reciprocal switching prescriptions to those situations that only involve Class I rail carriers due to the lack of specific information on this matter and the concerns raised by ASLRRA. However, we request comments on this issue in order to consider whether the Board should, now or in the future, extend the rules to include smaller carriers.

    Working Interchanges Within a Reasonable Distance

    Under both prongs of the proposed regulations, the party seeking switching must show that “there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching.” This showing, while based on NITL's proposal, does not include any conclusive presumption as to what is or is not a reasonable distance or what is or is not a working interchange. (See NITL Pet. 67.) NITL had proposed that the Board conclusively presume that there is a working interchange within a reasonable distance if either: (1) A shipper's facility is within the boundaries of a “terminal” of a Class I carrier in which cars are “regularly switched,” or (2) there is an interchange at which cars are regularly switched within 30 miles of the shipper's facilities. As commenters pointed out, NITL did not define “terminal,” or “regularly switched.” (See, e.g., NSR Comments 49-50.) While the fact that cars are regularly switched at a point on the rail system would certainly be evidence of a working interchange, these determinations should be made on a case-by-case basis. The Board, nonetheless, invites comments on defining the term “reasonable distance” in an effort to provide guidelines to parties that may seek switching under the proposed regulations.

    The proposal also deviates from NITL's insofar as it would define the term “is or can be” a working interchange. NITL stated in its petition that this requirement would not be “limited to existing interchanges, but the petitioner could prove on the basis of facts and circumstances that a working interchange could reasonably be constructed.” (NITL Pet. 53.) Few comments were received specifically on this point. The Board is concerned that the breadth of NITL's proposed language could be read to imply that railroads be required to construct brand-new interchange facilities to satisfy a switching prescription. Thus, we are proposing that the Board would determine that there “is” a working interchange if one already exists and is currently engaged in switching operations. The Board would determine that there “can be” a working interchange only if the infrastructure currently exists to support switching, without the need for construction, regardless of whether switching operations are taking place or have taken place using that infrastructure. We recognize that there was a lack of comment on this point and that we may be proposing a narrower definition than the one proposed by NITL. We therefore also specifically seek comment on this matter.

    Effective Intermodal and Intramodal Competition

    Under the competition prong of the proposed regulations, a petitioner for switching must show that intermodal and intramodal competition is not effective with respect to the movements for which switching is sought. This aligns with one of the elements of NITL's proposal, which would have made reciprocal switching available “only for movements that are without effective inter- or intra-modal competition.” (NITL Pet. 7.) However, for the reasons discussed above, the conclusive presumptions proposed by NITL have not been adopted. Applying this factor without conclusive presumptions, according to NITL, would involve “an individualized inquiry in light of the applicant's relevant facts and circumstances.” (NITL Reply 35-36.)

    The Board already has a framework for conducting such an individualized inquiry—specifically, in determining the reasonableness of rates, the Board performs a market dominance analysis. See 49 U.S.C. 10707 (requiring “an absence of effective competition from other rail carriers or modes of transportation,” which the statute describes as “market dominance”). The Board's market dominance test has a quantitative component and a qualitative component. Under the quantitative component, if the rail carrier proves that the rate at issue results in a R/VC ratio less than 180%, the Board will find that the rate is subject to effective competition. See 10707(d)(1)(A). If this quantitative R/VC ratio threshold is met, the Board moves to the second component, a qualitative analysis. Wis. Power & Light Co. v. Union Pac. R.R., 5 S.T.B. 955, 961 (2001), aff'd sub nom. Union Pac. R.R. v. STB, 62 F. App'x 354 (D.C. Cir. 2003). In this analysis, the Board determines whether there are any feasible transportation alternatives that are sufficient to constrain the railroad's rates to competitive levels, considering both intramodal and intermodal competition. E.I. du Pont de Nemours & Co. v. CSX Transp., Inc., NOR 42099, slip op. at 2 (STB served June 30, 2008). Even where feasible transportation alternatives are shown to exist, those alternatives may not provide “effective competition.” See Mkt. Dominance Determinations & Consideration of Prod. Competition, 365 I.C.C. 118, 129 (1981) (“Effective competition for a firm providing a good or service means that there must be pressures on that firm to perform up to standards and at reasonable prices, or lose desirable business.”), aff'd sub nom. W. Coal Traffic League v. United States, 719 F.2d 772 (5th Cir. 1983) (en banc).

    The Board proposes to apply the market dominance test to determine whether a movement is without effective intermodal or intramodal competition.21 The ICC, in Midtec Paper Corp., held that market dominance is not a jurisdictional prerequisite to obtaining relief in an access proceeding under 11102. 3 I.C.C.2d at 180. That remains the case; unlike rate reasonableness cases, where the statute creates such a prerequisite to obtaining rate relief, 49 U.S.C. 10707(c), there is no such statutory requirement for reciprocal switching. However, there is nothing in 11102 that prohibits the use of the market dominance test here as part of the analysis, rather than a jurisdictional prerequisite. The Board has developed this methodology through numerous rate reasonableness decisions, and although it was developed in the context of rate cases, it answers the same question that the Board would address under the competition prong of the proposed reciprocal switching analysis: Whether effective competition exists for an individual movement or movements. It is therefore appropriate to apply this approach, which is familiar to litigants before the Board, under the competition prong of the reciprocal switching analysis as well. Use of a mature analytical framework to gauge whether a shipper lacks effective competition is desirable. Accordingly, the proposed rules would apply the Board's existing market dominance test to determine the intramodal/intermodal competition element under the competition prong.

    21 We note that NITL, while arguing against applying a market dominance framework, advocated for a presumption of the absence of effective competition in cases where the R/VC ratio for the traffic at issue was 240% and above. (See NITL Reply 59-60.)

    Effect on Market Dominance Determinations in Rate Reasonableness Cases

    NITL and several other commenters express concern regarding the potential effects of a reciprocal switching order on market dominance determinations in rate reasonableness cases. (See, e.g., NITL Comments 14-16; USDA Comments 7.) For example, Joint Coal Shippers argue that the availability of a reciprocal switching remedy should not change the Board's methodology for assessing market dominance and that losing the ability to pursue maximum rate relief would seriously harm shippers. (Joint Coal Shippers Comments 7-14; Joint Coal Shippers Reply 2-9.) These commenters emphasize that 49 U.S.C. 10707, which establishes the market dominance threshold for rate reasonableness cases, requires effective competition, and they argue that a transportation alternative provided by a reciprocal switching order would not necessarily be an effective constraint on the incumbent railroad's pricing power. (E.g., Joint Coal Shippers Comments 8-9, 13-14.)

    At least one railroad commenter appears to view the situation similarly—that is, in market dominance analyses, the Board would assess a reciprocal switching order in the same way as other transportation alternatives to determine whether or not it provides effective competition. (See CSXT Reply 49-50 (urging the Board against “a blanket ruling that these newly available competitive remedies are not an effective competitive option for rate reasonableness purposes”) (emphasis added).) AAR, however, asserts that because shippers claim NITL's proposal would introduce competition and reduce rates, should they be successful in getting a switching order from the Board, they should not be “allowed to bring rate cases that are permitted only in the absence of competition.” (AAR Reply 28.) Similarly, BNSF contends that “mandated reciprocal switching . . . would create an effective competitive alternative that would preclude a finding of market dominance under the statute.” (BNSF Reply 8.)

    There is no need to issue a blanket rule that the existence of a reciprocal switching order would (or would not) preclude a finding of market dominance in rate cases. Instead, a reciprocal switching prescription should be treated in the same way as any other transportation alternative that would be assessed in our market dominance inquiry. AAR and BNSF provide no support for their claims that reciprocal switching would automatically be a source of effective competition. The Board has held that even where feasible transportation alternatives are shown to exist, those alternatives may not provide effective competition. E.g., M&G Polymers USA, LLC v. CSX Transp., Inc., NOR 42123, slip op. at 2 (STB served Sept. 27, 2012) (citing Mkt. Dominance Determinations & Consideration of Prod. Competition, 365 I.C.C. 118, 129 (1981)). In evaluating market dominance in rate reasonableness cases, we propose to continue to analyze whether or not a transportation alternative provides effective competition, including an alternative provided under a reciprocal switching order.

    Access Pricing

    Pursuant to 49 U.S.C. 11102(c)(1), “[t]he rail carriers entering into [reciprocal switching ordered by the Board] shall establish the conditions and compensation applicable to such [switching], but, if the rail carriers cannot agree upon such conditions and compensation within a reasonable period of time, the Board may establish such conditions and compensation.” Thus, the determination of access fees is left, by statute, to the carriers in the first instance.

    To the extent that the Board would become involved in establishing switching fees (i.e., when the rail carriers do not agree), several parties note in their comments that NITL's petition does not address the issue of access pricing methodology. (See, e.g., Agricultural Parties 18; KCS Comments 20; NSR Comments 36; AAR Reply 17; UP Reply 6.) Several commenters offer proposals for access pricing, which are summarized below.

    Although NITL did not address access pricing in its petition for rulemaking, in its opening comments in response to the Board's order requesting additional information, it uses a simplified version of the Canadian interswitching model, arguing that the Canadian access pricing model is “rigorously determined by the Canadian Transportation Agency, on the basis of railway costs and other information supplied by the Canadian carriers and . . . is designed to cover both variable costs and a share of the carriers' fixed costs.” (NITL Comments 31-32.) 22 Using the simplified version of this model, which eliminates the use of varying prices based on distance zones, NITL assumes access fees of $300 per car for movements involving 1-59 cars and $89 per car for movements involving 60 or more cars, based on Canada's latest figures at the time. (Id. at 34.) Similarly, USDA recommends that the Board use the average of Canadian interswitching rates for access prices, estimating $279 per car for 1-59 car movements and $84 per car for movements 60 cars or greater. (USDA Comments 20.)

    22 Under the Canadian interswitching access pricing model, the switching fee is based on distance zones, with the price increasing the greater the distance from the shipper's facility to the point of interchange.

    Highroad, Diversified CPC, and Roanoke Cement favor adoption of the Canadian interswitching model without modification. (Highroad Comments 22; Diversified CPC Comments 8-10; Roanoke Cement Comments 9-10.) They contend that the Canadian model is straightforward and easy to implement. Although Agricultural Parties do not believe that the Board should adopt the Canadian model, they express the view that it merits further study by the Board. (Agricultural Parties Comments 19.)

    Agricultural Parties also note that there are numerous U.S. terminal switching rates that might serve as a benchmark for access pricing here, but state that they are not in a position to perform the study necessary to make such an evaluation. (Agricultural Parties Comments 19-20.)

    Some commenters suggest that trackage rights fees are a form of access pricing and that the Board should look to how those fees are set. GLE states that it supports the use of mutually agreed trackage rights fees or haulage rights fees for access pricing. (GLE Comments 3.) Citing the ICC's decision in Arkansas & Missouri Railroad v. Missouri Pacific Railroad, 6 I.C.C.2d 619 (1990), Agricultural Parties, however, state that they examined the agency's methodology used in trackage rights cases, referred to as “SSW Compensation,” but believe that this type of approach to compensation is not appropriate where the instigating party is a shipper as opposed to a railroad. (Agricultural Parties Comments 18.)

    While not offering a specific methodology, some parties comment on the principles that the Board should consider if it is required to set an access price. UP, for example, argues that the access price must cover the serving railroad's actual cost of providing the switching service as well as the serving railroad's lost contribution from the long-haul. (UP Comments 61-62.) KCS argues that any proposed access standard must allow an incumbent carrier to assess switching charges that allow that carrier to move toward revenue adequacy. As such, KCS argues that a prescribed switching rate below an incumbent carrier's RSAM would be inconsistent with the RTP. (KCS Comments 38.)

    Given the importance of the issue and the relative lack of detail in the record regarding access pricing methodologies, the Board will propose two alternative approaches to access pricing for public comment.

    Under Alternative 1, we propose to determine access pricing based on a specified set of factors, in the event that the Board is called upon to establish compensation. Based on precedent, such factors could include the geography where the proposed switch would occur, the distance between the shipper/receiver and the proposed interchange, the cost of the service, the capacity of the interchange facility and other case-specific factors. See Switching Charges & Absorption Thereof at Shreveport, La., 339 I.C.C. 65 (1971) (discussing revenues, cost of service, amount of switching, other terminals in adjacent territory, and other factors); CSX Corp.—Control & Operating Leases/Agreements—Conrail Inc., FD 33388 et al. (STB served Dec. 18, 1998) (discussing appropriate switching fees in New York Terminal Area based on specific cost relative to actual operations). We also seek comment on whether the list of factors should include any portion of the incumbent rail carrier's loss contribution or opportunity costs, per UP's suggestion.

    Under Alternative 2, we seek comment on the adoption of a variant of the agency's SSW Compensation methodology to establish switching fees, in the event that the Board is called upon to establish compensation. Although SSW Compensation is used primarily in trackage rights cases where one rail carrier is actually operating over another rail carrier's lines, many of the principles that inform the methodology would apply in the reciprocal switching fee context as well. Thus, what we call Rental Income in SSW Compensation would have an analogy in a directed switch in the form of Imputed Rental Income. A switching fee set by the Board could seek to compensate the incumbent for the expenses incurred to provide the service, plus a fair and reasonable return on capital employed. Given that the regulatory goals in trackage rights compensation and reciprocal switching compensation are similar, we seek comment on whether and how SSW Compensation could be adapted to devise fair access fees in reciprocal switching cases.

    Parties may also comment on other potential access fee methodologies.

    Separation of Through Routes

    The Board's current regulations in Part 1144 address not only reciprocal switching under 49 U.S.C. 11102(c), but also through routes under 49 U.S.C. 10705. As explained, the Board proposes to implement the changes proposed here by separating through routes and reciprocal switching in the Board's regulations. In other words, the previously-shared regulations at Part 1144 would be modified to eliminate references to reciprocal switching, and then adopt new Part 1145 to address reciprocal switching. The Board also recognizes that, from a theoretical perspective, some of the issues addressed in this proceeding could arguably apply to through routes as well. Today's decision, however, is a proposed incremental change to the Board's competitive access regulations based on NITL's petition and the record built in response, all of which pertain to reciprocal switching specifically. Thus, aside from removing references to reciprocal switching from Part 1144, the current standards for through routes would be maintained.

    Changes From Part 1144

    Although the standard governing reciprocal switching in new Part 1145 differs from that governing through routes in Part 1144, we have attempted to model Part 1145 on Part 1144, as they both pertain to competitive access remedies that have previously been closely aligned. Thus, for example, the Board proposes to include in Part 1145 the same provision on negotiation that exists in Part 1144. To the extent that we depart from some of the language in Part 1144, we address those departures below.

    Section 1144.2(a)(2) of the Board's regulations currently states that a through route or reciprocal switching order requires a finding that either “[t]he complaining shipper has used or would use the through route, through rate, or reciprocal switching to meet a significant portion of its current or future railroad transportation needs between the origin and destination,” or “[t]he complaining carrier has used or would use the affected through route, through rate, or reciprocal switching for a significant amount of traffic.” This requirement, referred to by the ICC as the “standing” requirement, was adopted because the statute at the time provided that the ICC could not suspend a proposed cancellation of a through route and/or a joint rate pursuant to former 10705 and 10707 unless it appeared that failure to suspend would cause substantial injury to the protestant. Intramodal Rail Competition, 1 I.C.C.2d at 825-26, 830. However, because the statutory provisions regarding cancellation of through routes and/or joint rates are no longer in force, it is not necessary to include the standing requirement in the Board's proposed reciprocal switching regulations. The Board would continue to consider this factor in evaluating whether a reciprocal switching arrangement would be practicable and in the public interest, as that could be a relevant factor under that prong. We would not, however, include it as part of the determination of whether a reciprocal switching arrangement is necessary to provide competitive rail service. The purpose of ordering reciprocal switching under this prong is to encourage competition between two carriers. As such, a shipper would have the choice between using the incumbent carrier or the competing carrier depending on which one provided the better rates or service. Thus, in order for the reciprocal switching order to serve its intended purpose, the shipper should be free to choose between the two carriers. Requiring the shipper to use the competing carrier pursuant to a reciprocal switching order for a significant amount of traffic would limit the shipper's flexibility, which would be contrary to the goal of such an order.

    The Board's current regulations in Part 1144 also state that “[t]he Board will not consider product competition,” and, “[i]f a railroad wishes to rely in any way on geographic competition, it will have the burden of proving the existence of effective geographic competition by clear and convincing evidence.” 49 CFR 1144.2(b)(1). The ICC adopted this language in 1985 in Intramodal Rail Competition, stating that the treatment of geographic competition “is consistent with the way this issue will be handled in the market dominance context,” and that the provision eliminating consideration of product competition “reflects a negotiated agreement between the major railroad and shipper interests.” 1 I.C.C.2d at 828-29 & n.6. In 1998, however, the Board excluded evidence of product and geographic competition from the market dominance inquiry because such evidence was not required by 49 U.S.C. 10707(a) and because of the substantial burden its inclusion imposed on the parties and the Board. Mkt. Dominance Determinations—Prod. & Geographic Competition, 3 S.T.B. 937 (1998); see also Ass'n of Am. R.R.s v. STB, 306 F.3d 1108 (D.C. Cir. 2002) (denying petition for review of the Board's decision following earlier remand); Pet. of Ass'n of Am. R.R.s s to Inst. a Rulemaking Proceeding to Reintroduce Indirect Competition as a Factor Considered in Mkt. Dominance Determinations for Coal Transported to Utility Generation Facilities, EP 717 (STB served Mar. 19, 2013) (denying request to consider reintroducing indirect competition as a factor in market dominance analyses).

    As discussed above, the second factor under the proposed competition prong—the absence of effective intermodal or intramodal competition—incorporates the market dominance inquiry of 49 U.S.C. 10707 (requiring “an absence of effective competition from other rail carriers or modes of transportation”). Moreover, when the ICC adopted the current language of 1144.2(b)(1), it explained the treatment of geographic competition as being consistent with the agency's approach in evaluating market dominance. Accordingly, it is appropriate for the Board to address this question consistently in both the reciprocal switching and rate reasonableness contexts. Therefore, in proposed Part 1145, the Board instead proposes language providing that it will not consider product or geographic competition.

    Finally, 1144.3(c) of the Board's regulations currently states that “[a]ny Board determinations or findings under this part with respect to compliance or non-compliance with the standards of 1144.2 shall not be given any res judicata or collateral estoppel effect in any litigation involving the same facts or controversy arising under the antitrust laws of the United States.” In adopting this provision, the ICC explained: “The parties to the agreement [NITL, AAR, and CMA, now known as ACC] have requested adoption of this rule. We only note that it is unenforceable by us.” Intramodal Rail Competition, 1 I.C.C.2d at 832. As indicated above, the Board's proposal is not based on this prior agreement among stakeholders. Therefore, this language is not included in the reciprocal switching regulations.

    Procedural Schedule and Ex Parte Waiver

    As the Board explained in United States Rail Service Issues—Performance Data Reporting, EP 724 (Sub-No. 4), slip op. at 1-2 (STB served Nov. 9, 2015), the agency has long interpreted its ex parte prohibition as encompassing informal rulemakings. However, the Board may waive its own regulations in appropriate proceedings and take steps to ensure that a fair process is established, including notice, disclosure, and an opportunity for parties to comment on information discussed during informal meetings. Id. at 2.

    In this proceeding, we find good reason for a limited waiver of the Board's ex parte prohibitions. As we noted in our July 25, 2012 decision in Docket No. EP 711 in response to NITL's petition, a vigorous debate regarding the appropriate methodology for competitive access has been ongoing since at least the 1980s. There are many different (and often conflicting views) regarding the potential benefits of increased reciprocal switching to shippers and the potential impact to carriers. As was made clear in the record following NITL's petition, those potential benefits and impacts are complicated and often inter-related. Given that there has been no significant change in agency policy regarding reciprocal switching in more than 30 years, the Board believes it would be beneficial to hear directly from stakeholders on these issues and ask follow-up questions.23 These stakeholder discussions will supplement the written record and allow the Board to better understand these complex issues.

    23 Ex parte meetings under this decision will only be permitted with Board Members, their individual office staffs, and certain other staff.

    To ensure that the public has a complete record of the evidence and arguments that the Board will consider in its decision-making, ex parte communications in informal rulemaking proceedings require special procedures to maintain both fairness and accessibility. U.S. Rail Service Issues, slip op. at 3. We will establish the following measures to ensure that all parties have an opportunity to meet with Board Members should they choose to do so, have the ability to review the substance of all such discussions, and have the opportunity to comment on information presented at these discussions. Meetings with Board Members will take place between October 25, 2016, either at the Board's offices or by telephone conference (pursuant to each party's request). Any party seeking to meet with a Board Member should contact the Member's office no later than October 10, 2016 to schedule a meeting.24 If a party wishes to meet with multiple Board Members, separate meetings with each Board Member must be scheduled.

    24 Chairman Elliott's office can be reached at (202) 245-0220. Vice Chairman Miller's office can be reached at (202) 245-0210. Commissioner Begeman's office can be reached at (202) 245-0200. For each meeting request, parties should indicate multiple available requested days/times and meeting attendees.

    The Board will disclose the substance of each meeting by posting, in Docket No. EP 711 (Sub-No. 1), a summary of the arguments, information, and data presented to the Board Member at each meeting (including the names/titles of attendees of the meeting) and a copy of any handout given or presented to the Board Member. Parties participating in ex parte meetings will be responsible for preparing the summaries, and we encourage parties to use the Board's staff-prepared summaries in Rail Service Issues as examples.25 Summaries, plus any handouts, should be submitted, via email, to the Board Member office with whom the party met within two business days of the meeting.26 The Board expects that meeting summaries will be posted in the docket within 14 days of the meeting.27

    25 If multiple parties are present at a single ex parte meeting, only one meeting summary should be submitted.

    26 Summaries and handouts regarding meetings with Chairman Elliott should be sent to Janie Sheng at [email protected] Summaries and handouts regarding meetings with Vice Chairman Miller should be sent to Brian O'Boyle at [email protected] Summaries and handouts regarding meetings with Commissioner Begeman should be sent to James Boles at [email protected]

    27 Parties are directed to limit their communications at these meetings (including any handouts) to non-confidential information only. To the extent parties wish to provide confidential information, they should do so in their written comments, pursuant to a protective order.

    The Board will provide notice when all meeting summaries have been posted in the record, and set a comment period for replies to the meeting summaries in that decision.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The regulations proposed here are limited to Class I railroads and, thus, would not impact a substantial number of small entities.28 Accordingly, pursuant to 5 U.S.C. 605(b), the Board certifies that the regulations proposed herein would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    28 Effective June 30, 2016, for the purpose of RFA analysis, the Board defines a “small business” as a rail carrier classified as a Class III rail carrier under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (Commissioner Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $38,060,383 or less when adjusted for inflation using 2014 data. Class II rail carriers have annual operating revenues of up to $250 million in 1991 dollars or up to $475,754,802 when adjusted for inflation using 2014 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.

    List of Subjects 49 CFR Part 1144

    Intramodal rail competition.

    49 CFR Part 1145

    Reciprocal switching.

    It is ordered:

    1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.

    2. The procedural schedule for Docket No. EP 711 (Sub-No. 1) is established as follows: comments regarding the proposed rules are due by September 26, 2016; replies are due by October 25, 2016; requests for meetings with Board Members are due by October 10, 2016; meetings with Board Members will occur between October 25, 2016 and November 14, 2016 meeting summaries are to be submitted within two business days of the ex parte meeting; the period for comments on meeting summaries will be set by separate decision.

    3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    4. The Board terminates the proceeding in Docket No. EP 711.

    5. This decision is effective on the day of service.

    Decided: July 25, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Vice Chairman Miller commented with a separate expression and Commissioner Begeman dissented with a separate expression.

    Brendetta S. Jones, Clearance Clerk.
    VICE CHAIRMAN MILLER, commenting:

    The Board's regulatory mission is set out in the Rail Transportation Policy (RTP) at 49 U.S.C. 10101. Two important but competing goals in the RTP are to promote an efficient, competitive, safe and cost-effective rail network by enabling railroads to earn adequate revenues that foster reinvestment in their networks, attract outside capital, and provide reliable service, while at the same time working to ensure that effective competitions exists between railroads and that rates are reasonable where there is a lack of effective competition. As in all major rulemakings the Board undertakes, my goal here has been to develop a proposal for reciprocal switching that properly satisfies both of these goals.

    In finding the appropriate balance, I believe that we have taken a prudent approach by creating a standard that is closely tied to the statutory language of 49 U.S.C. 11102(c), rather than trying to create our own standard out of the statutory language. By doing so, I believe we have been able to develop a proposal that would satisfy the competing goals, as well as effectuate Congress' express grant of authority to permit reciprocal switching in certain circumstances. And although I have no doubt both our railroad and shipper stakeholders will find things to dislike about today's proposal, I believe that it would address the most significant concern raised by each side.

    For shippers, the Board would remove the anticompetitive standard that was created in Intramodal Rail Competition and Midtec Paper Corp., which has proven to be a nearly impossible bar. Regardless of whatever evidence shippers have presented in the handful of cases the agency has decided—whether it be high rates or poor service—the agency has consistently found it to be lacking. As such, it appears that the only way that a shipper could meet this standard would be to provide evidence that the railroad was intentionally behaving in an anticompetitive manner. But demonstrating such a clear intent is difficult. By eliminating the anticompetitive conduct showing, shippers will now be free to seek reciprocal switching without having to produce a smoking gun. It is undeniable that Congress gave the Board the power to order reciprocal switching, yet our existing anticompetitive standard has essentially nullified this power. The railroads' arguments that the Board should keep the existing standard essentially amount to a request that we ignore the Congressional authorization for the Board to allow shippers (or other railroads) to be able to obtain reciprocal switching in certain instances.

    But even if the anticompetitive conduct standard had not proven to be unworkable, I believe that the need for such a high bar on shippers to obtain reciprocal switching no longer exists. While the anticompetitive standard may have made sense in 1985, just after de-regulation and in an era where the railroad industry was still trying to restore itself to financial health, the landscape today is much different. As we have noted in the decision, railroads are in a much better financial condition than they were three decades ago. I believe that 49 U.S.C. 11102(c) was written in a way that gives the Board flexibility to alter the standard for obtaining reciprocal switching if, based on our judgment, the balance between the two important goals described above has changed. Based on what I have observed of the railroad industry in my time at the Board, I believe that we have reached that point.

    However, just because the railroads are financially stronger today does not mean that the Board should upend the existing regulatory scheme with broad, sweeping changes. While a change to the reciprocal switching standard is needed, I believe that the NITL approach swings too far in the other direction. I believe that for shippers to obtain this remedy, a shipper should still have to demonstrate that reciprocal switching is needed based on one of the reasons articulated by Congress, rather than for it to simply be presumed to be needed. Without assessing requests for reciprocal switching on a case-by-case basis (at least for now), the potential for unintended consequences is too great. For that reason, I ultimately determined that I could not support the NITL proposal.

    By rejecting the NITL proposal, today's decision addresses what I consider the most significant concern raised by the railroads: that a new reciprocal switching standard will result in its widespread application, to the significant detriment of the industry's financial health and operations. By keeping in place the requirement that shippers demonstrate that it is needed on a case-by-case basis, I believe that we have addressed that concern. Removing the anticompetitive conduct requirement will likely mean that some shippers will actually now be able to obtain a reciprocal switching prescription, but I believe the criteria proposed here would enable the Board to apply it only when appropriate.

    In considering how to revise the reciprocal switching standard, I have been acutely aware of the fact that the railroads are currently facing changing economic conditions. With the decline of coal traffic, which is unlikely to return to previous volumes, and declining or sluggish volume growth for other commodities, there is no doubt that the railroads today find themselves in a difficult environment. I am mindful of the concerns that additional regulation could impact their ability to weather this storm. But I do not believe that the proposal we have announced today, if adopted, would impose significant burdens on the railroad industry. Indeed, it is my hope that the Board will rarely be called upon to impose the reciprocal switching remedy, but instead, that whatever final rules we adopt will merely provide a bit more incentive for carriers to ensure that their customers' needs are being met in those instances where that is not the case. So long as a carrier meets the needs of its customers, there should be little reason for a customer to seek such a remedy. Moreover, it is my belief that today's proposal would not undo the accomplishments that have been achieved through deregulation under the Staggers Act.

    That being said, I recognize that today's proposal is unlikely to be perfect. In fact, there are aspects of the proposal that still concern me. However, if the Board were to continue to delay this proceeding in order to try to develop a perfect proposal, this proceeding would never end. It is my belief that any issues with the proposal can be addressed after the Board has had an opportunity to hear from the parties. I am particularly pleased that we have decided to waive our ex parte communication prohibition in this proceeding (though, as I have noted in the past, I still advocate the outright elimination of this prohibition, rather than waiving it on case-by-case basis). I believe that these meetings will allow the Board Members to better understand the impacts this proposal would have and ways in which it can be improved.

    As a final point, I would again note my frustration that it has taken the Board five years to reach this stage. Much of this delay feels like it could have been avoided by not asking the parties to submit additional evidence in July 2012. It seems that today's decision could have been made without this additional evidence, which was not heavily relied on in reaching today's decision. As I have noted on other occasions, I find that the amount of time that it takes the Board to complete proceedings to be troubling. In addition to the inexcusably long time that our stakeholders were kept waiting, they were left in the dark as to the progress. If parties are going to have to wait unnecessarily long periods of time for outcomes, the Board could at least be more transparent on the progress of their cases. No doubt having heard such complaints from our stakeholders, Congress required the agency to begin issuing quarterly reports on its unfinished regulatory proceedings as part of the Surface Transportation Board Reauthorization Act of 2015. The benefits of this reporting are already being seen, as it has been forced the Board to set deadlines in its many long-delayed rulemakings, and the Board has even completed some that have been pending for years. It is my belief that the Board needs to develop a similar (if not the same) reporting system for its other significant proceedings. This would provide parties with greater transparency on the progress of their cases, force the Board to develop deadlines, and ensure that the agency is adhering to them.

    Commissioner Begeman, dissenting in part:

    I want to begin by commending the National Industrial Transportation League (NITL) for the considerable and thoughtful effort it went to—more than five years ago—in prompting the Board to revisit the agency's competitive switching rules. I have valued the views and knowledge of the NITL leadership and members since first meeting them when I was a young Senate staffer. Then, as now, NITL can be counted on to provide insight and to explain how businesses across the county are impacted by even the most arcane laws and regulations.

    When stakeholders demonstrate that the agency's regulations or processes present too high a bar to allow their use, we have an obligation to examine whether we can improve those regulations or processes, while keeping the promotion of safe and efficient rail service at the top of our agenda. Although I have a number of questions and concerns about NITL's competitive switching proposal, many of which I shared during the April 2014 hearing, there is no dispute that since the current rules were adopted in 1985, very few reciprocal switching requests have been filed and none have been granted. As such, it is hard to believe that the existing regulations adequately implement Congress' intent that the Board order reciprocal switching when necessary.

    While I may not be an advocate of the status quo, I do not casually embrace regulatory changes. Any altering of the Board's existing switching rules must be balanced, fair, and supported by analyses that indicate the changes will not have unintended consequences for our stakeholders or the public. I do not believe today's proposal meets those standards. This decision also ignores fundamental questions that the Board should have asked and answered before issuing today's proposal, and after five years, there has been ample time to do so. For example:

    • The reciprocal switching proposal rejects the use of conclusive presumptions, which were argued by NITL as necessary to mitigate the complexity and costs of litigating competitive switching. What does today's proposal offer to mitigate the complexity and costs? Should the Board use rebuttable presumptions to create a more predictable process for shippers and carriers?

    • The Department of Transportation estimated that NITL's proposal would affect 2.1 percent of revenue and 1.3 percent of carloads, figures that are considered significant inside the agency. What impact to revenue and carloads would be permitted under today's proposal? Once that level is reached, will the Board no longer consider new switching applications?

    • The proposal seems to suggest that if the Board acts on a case-by-case basis, there is no need to assess the potential impact it could have on the rail system overall. But how can the Board provide fair and consistent switching judgments on a case-by-case basis without creating complexity and cost impacts on the one hand, and not introducing more unpredictability to the rail network on the other?

    • How long will it take to process the cases envisioned under today's proposal? What is the procedural timeline? Do we have any projections for how long such a case will take to process inside the agency? Currently, the Board is struggling to determine how to meet new Congressional mandates for timeliness. How will this type of new access case (i.e., presumably time sensitive yet not subject to any specific Congressional timing mandate) fit into the Board's crowded priority list?

    • Given the majority's stated position that it “will not attempt to formalize the precise showings” that parties would have to make in a given case because of its desire to be “flexible,” what would a party seeking a reciprocal switch really have to demonstrate to the Board? What would the carrier have to demonstrate to convince the Board the requested switch should not be granted?

    • What is the “reasonable distance” that is surprisingly left undefined in the proposal? While the language that dismisses the NITL's conclusive presumptions implies that the Board's proposal could involve switches of more than 30 miles, my briefings suggest it may be only a very short distance (i.e., the distances that have historically been involved with reciprocal switching). How could historical norms of switching be relied on while the decision cites massive industry changes that would make those historical norms uninformative at best?

    • How does today's decision mitigate impacts on network efficiency and service, particularly at major gateways and terminals? The Board has required weekly performance data reports on the Chicago hub since October 2014 because of its importance to national rail operations and the impact that congestion in that gateway can have on rail service nationwide. Should Chicago and other major gateways be excluded from new reciprocal switching requirements?

    • Is permanence for a switching arrangement under the proposed new rule, which may not require robust evidence, fair to either the carrier or the other shippers impacted by that switching arrangement?

    Today's decision incorporates a concern I expressed after seeing an earlier version of the proposal, which is that short line carriers be exempted from the requirements. The decision also waives the Board's rigid ex parte rules to allow the members to hear from stakeholders, as the Vice Chairman and I insisted. However, I cannot support the rest of it. We have no idea how the proposed rule would or even could be utilized. We don't know its potential impact on the shippers that would be granted a reciprocal switch or its potential impact on shippers that wouldn't benefit from a reciprocal switch. We also don't know the proposal's potential impact on the rail carriers. Nor do we know its potential impact on the fluidity of the rail network. All of these impacts matter. After all, rail volumes have been down all of 2016, and are currently down nearly six percent from just a year ago. I firmly believe that what we do here, ultimately, could cause greater harm than good. Or, it may result in nothing more than an empty promise to prospective applicants.

    It is incumbent on the Board Members and staff to listen to all interested stakeholders on these issues if there is to be any hope for adopting meaningful, lawful regulations designed to better implement the agency's statutory reciprocal switching authority. And I certainly recognize that stakeholders are at a disadvantage because today's proposal, in my view, is full of gaps by design. The goal appears to be that we can slip these and other unanswered questions by now and figure them out later. I implore our stakeholders to fully engage this agency and not allow such an outcome.

    I support only those aspects of the decision that waive the Board's ex parte prohibitions and exclude Class II and Class III carriers from reciprocal switching prescriptions. Otherwise, I dissent.

    The Board received written and/or oral comment from the following parties in Docket No. EP 711:

    • AkzoNobel, Inc. • Alliance for Rail Competition, Montana Wheat & Barley Committee, Colorado Wheat Administrative Committee, Idaho Barley Commission, Idaho Wheat Commission, Montana Farmers Union, Nebraska Wheat Board, Oklahoma Wheat Commission, South Dakota Wheat Commission, Texas Wheat Producers Board, Washington Grain Commission, National Association of Wheat Growers (collectively, ARC) • Alliance of Automobile Manufacturers • American Chemistry Council (ACC) • American Short Line and Regional Railroad Association (ASLRRA) • Arkansas Electric Cooperative Corporation (AECC) • Association of American Railroads (AAR) • Bayer MaterialScience LLC • BNSF Railway Company (BNSF) • Cargill Inc. • CEMEX, Inc. • The Chlorine Institute, Inc. • Competitive Enterprise Institute (CEI) • Consumers United for Rail Equity (CURE) • CSX Transportation, Inc. (CSXT) • Diversified CPC International, Inc. (Diversified CPC) • Dow Chemical Company • Entergy Arkansas, Inc., Kansas City Power & Light Company, Seminole Electric Cooperative, Inc., and Wisconsin Electric Power Company d/b/a WE Energies (collectively, Joint Coal Shippers) • The Fertilizer Institute • Florida East Coast Railway, LLC • Glacial Lakes Energy, LLC (GLE) • Glass Producers Transportation Council • Heartland Consumers Power District • Highroad Consulting, Ltd. (Highroad) • Indorama Ventures EO & Glycols, Inc., StarPet, Inc., AlphaPet, Inc., and Auriga Polymers Inc. • International Warehouse Logistics Association • Interstate Asphalt Corp. • Kansas City Southern Railway Company (KCS) • National Grain and Feed Association (NGFA) • NGFA, Agricultural Retailers Association, National Barley Growers Association, USA Rice Federation, National Oilseed Processors Association, National Chicken Council, National Association of Wheat Growers, National Council of Farmer Cooperatives, National Corn Growers Association (collectively, Agricultural Parties) • NITL • Norfolk Southern Railway Company (NSR) • Olin Corporation (Olin) • Paper and Forest Products Industry Transportation Committee • Portland Cement Association • PPG Industries, Inc. • PPL Corporation • Roanoke Cement Company (Roanoke Cement) • Steel Manufacturers Association • Union Pacific Railroad Company (UP) • United Transportation Union-New York State Legislative Board (UTU-NY) • U.S. Department of Agriculture (USDA) • U.S. Department of Transportation (DOT)

    Additionally, the following Members of Congress submitted comments, either individually or as joint comments:

    • Senator Tammy Baldwin • Representative Corrine Brown • Representative Jeff Denham • Representative William Enyart • Senator Al Franken • Representative Nick Rahall • Representative Bill Shuster • Senator David Vitter

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, of the Code of Federal Regulations by revising part 1144 and adding part 1145 to read as follows:

    PART 1144—INTRAMODAL RAIL COMPETITION 1. Revise the authority citation for part 1144 to read as follows: Authority:

    49 U.S.C. 1321, 10703, and 10705.

    2. Revise § 1144.1(a) to read as follows:
    § 1144.1 Negotiation.

    (a) Timing. At least 5 days prior to seeking the prescription of a through route or joint rate, the party intending to initiate such action must first seek to engage in negotiations to resolve its dispute with the prospective defendants.

    3. Amend § 1144.2 by revising paragraphs (a) introductory text, (a)(1) introductory text, (a)(1)(iii) and (iv), (a)(2), and (b)(3) to read as follows:
    § 1144.2 Prescription.

    (a) General. A through route or a through rate shall be prescribed under 49 U.S.C. 10705 if the Board determines:

    (1) That the prescription is necessary to remedy or prevent an act that is contrary to the competition policies of 49 U.S.C. 10101 or is otherwise anticompetitive, and otherwise satisfies the criteria of 49 U.S.C. 10705. In making its determination, the Board shall take into account all relevant factors, including:

    (iii) The rates charged or sought to be charged by the railroad or railroads from which prescription is sought.

    (iv) The revenues, following the prescription, of the involved railroads for the traffic in question via the affected route; the costs of the involved railroads for that traffic via that route; the ratios of those revenues to those costs; and all circumstances relevant to any difference in those ratios; provided that the mere loss of revenue to an affected carrier shall not be a basis for finding that a prescription is necessary to remedy or prevent an act contrary to the competitive standards of this section; and

    (2) That either:

    (i) The complaining shipper has used or would use the through route or through rate to meet a significant portion of its current or future railroad transportation needs between the origin and destination; or

    (ii) The complaining carrier has used or would use the affected through route or through rate for a significant amount of traffic.

    (b) * * *.

    (3) When prescription of a through route or a through rate is necessary to remedy or prevent an act contrary to the competitive standards of this section, the overall revenue inadequacy of the defendant railroad(s) will not be a basis for denying the prescription.

    4. Add part 1145 to read as follows: PART 1145—RECIPROCAL SWITCHING Sec. 1145.1 Negotiation 1145.2 Establishment of Reciprocal Switching Arrangement 1145.3 General Authority:

    49 U.S.C. 1321 and 11102.

    § 1145.1 Negotiation.

    (a) Timing. At least 5 days prior to seeking the establishment of a switching arrangement, the party intending to initiate such action must first seek to engage in negotiations to resolve its dispute with the prospective defendant(s).

    (b) Participation. Participation or failure to participate in negotiations does not waive a party's right to file a timely request for the establishment of a switching arrangement.

    (c) Arbitration. The parties may use arbitration as part of the negotiation process, or in lieu of litigation before the Board.

    § 1145.2 Establishment of reciprocal switching arrangement.

    (a) General. A reciprocal switching arrangement shall be established under 49 U.S.C. 11102(c) if the Board determines that such arrangement is either practicable and in the public interest, or necessary to provide competitive rail service, except as provided in paragraph(a)(2)(iv) of this section.

    (1) The Board will find a switching arrangement to be practicable and in the public interest when:

    (i) The party seeking such switching shows that the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by Class I rail carrier(s);

    (ii) The party seeking such switching shows that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching; and

    (iii) The party seeking such switching shows that the potential benefits from the proposed switching arrangement outweigh the potential detriments. In making this determination, the Board may consider any relevant factor, including but not limited to:

    (A) Whether the proposed switching arrangement furthers the rail transportation policy of 49 U.S.C. 10101;

    (B) The efficiency of the route under the proposed switching arrangement;

    (C) Whether the proposed switching arrangement allows access to new markets;

    (D) The impact of the proposed switching arrangement, if any, on capital investment;

    (E) The impact of the proposed switching arrangement on service quality;

    (F) The impact of the proposed switching arrangement, if any, on employees;

    (G) The amount of traffic the party seeking switching would use pursuant to the proposed switching arrangement; and

    (H) The impact of the proposed switching arrangement, if any, on the rail transportation network.

    (iv) Notwithstanding the provisions of (a)(1)(i)-(iii) of this section, the Board shall not find a switching arrangement to be practicable and in the public interest under this section if either rail carrier between which such switching is sought to be established shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.

    (2) The Board will find a switching arrangement to be necessary to provide competitive rail service when:

    (i) The party seeking such switching shows that the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by a single Class I rail carrier;

    (ii) The party seeking such switching shows that intermodal and intramodal competition is not effective with respect to the movements of the shipper(s) and/or receivers(s) for whom switching is sought; and

    (iii) The party seeking such switching shows that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching.

    (iv) Notwithstanding the provisions of (a)(2)(i)-(iii) of this section, a switching arrangement will not be established under this section if either rail carrier between which such switching is sought to be established shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.

    (b) Other considerations.

    (1) In considering requests for reciprocal switching under (a)(2) of this section, the Board will not consider product or geographic competition.

    (2) In considering requests for reciprocal switching under (a)(2) of this section, the overall revenue inadequacy of the defendant railroad will not be a basis for denying the establishment of a switching arrangement.

    (3) Any proceeding under the terms of this section will be conducted and concluded by the Board on an expedited basis.

    § 1145.3 General

    (a) Effective date. These rules will govern the Board's adjudication of individual cases pending on or after [EFFECTIVE DATE OF FINAL RULE].

    (b) Discovery. Discovery under these rules is governed by the Board's general rules of discovery at 49 CFR part 1114.

    [FR Doc. 2016-17980 Filed 8-2-16; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 160129062-6643-01] RIN 0648-BF49 Atlantic Highly Migratory Species; Commercial Retention Limit for Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic Region AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS is proposing modifications to the commercial retention limits for blacknose sharks and non-blacknose small coastal sharks (SCS) in the Atlantic region. The action would reduce discards of non-blacknose SCS while increasing the utilization of available Atlantic non-blacknose SCS quota and rebuilding and ending overfishing of Atlantic blacknose sharks. The Agency is proposing a measure that would establish a commercial retention limit of eight blacknose sharks for all Atlantic shark limited access permit holders in the Atlantic region south of 34°00′ N. latitude. In addition, NMFS is proposing to make two small, unrelated administrative changes to existing regulatory text to remove cross-references to an unrelated section and a section that does not exist. These two changes are administrative in nature, and no impacts to the environment or current fishing operations are expected. The proposed action could affect fishermen in the south Atlantic management area who hold commercial shark limited access permits.

    DATES:

    Written comments must be received by September 20, 2016. NMFS will hold an operator-assisted public hearing via conference call and webinar for the draft Environmental Assessment (EA) and this proposed rule on August 16, 2016, from 2 p.m. to 4 p.m. NMFS will also hold one public hearing for this proposed rule on August 24, 2016. For specific locations, dates and times, see the SUPPLEMENTARY INFORMATION section of this document.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2016-0095, 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-2016-0095, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Margo Schulze-Haugen, Chief, Atlantic HMS Management Division at 1315 East-West Highway, Silver Spring, MD 20910.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    NMFS will hold one public hearing in Cocoa Beach, FL and one conference call on this proposed rule. For specific locations, dates and times, see the SUPPLEMENTARY INFORMATION section of this document.

    Copies of the supporting documents, including the draft EA, Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and the 2006 Consolidated Atlantic HMS FMP are available from the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/ or by contacting Guý DuBeck at 301-427-8503.

    FOR FUTHER INFORMATION CONTACT:

    Guý DuBeck, Larry Redd, Cliff Hutt, or Karyl Brewster-Geisz by phone at 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Atlantic sharks are directly managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the authority to issue regulations has been delegated from the Secretary to the Assistant Administrator (AA) for Fisheries, NOAA. NMFS published in the Federal Register (71 FR 59058) final regulations, effective November 1, 2006 implementing the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), which details management measures for Atlantic HMS fisheries. The implementing regulations for the 2006 Consolidated HMS FMP and its amendments are at 50 CFR part 635. This proposed rule considers modifying the commercial retention limits for blacknose sharks and non-blacknose SCS in the Atlantic region south of 34°00′ N. latitude.

    Background

    A brief summary of the background of this proposed action is provided below. Additional information regarding Atlantic HMS management can be found in the Draft EA for this proposed action, the 2006 Consolidated HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/.

    NMFS manages four SCS species: Blacknose, Atlantic sharpnose, finetooth, and bonnethead. All of these species except blacknose sharks are managed in a management group called the “non-blacknose SCS.” Blacknose sharks were assessed separately and declared overfished with overfishing occurring and thus are managed separately, subject to a rebuilding plan. Nevertheless, gillnet fishermen in the South Atlantic area typically fish for and land all four of the SCS species. Thus, any management measure changes to either the blacknose shark or non-blacknose SCS management groups could impact all of these fishermen. Thus, while NMFS analyzed the stock impacts separately, NMFS discussed the economic impacts cumulatively at times and refer to the “overall SCS fishery,” which means the fishery for all four species in the South Atlantic management area.

    This proposed rule considers modifying the commercial retention limits for blacknose sharks and non-blacknose SCS in the Atlantic region. This rulemaking only focuses on the Atlantic region since NMFS prohibited the retention and landings of blacknose sharks in the Gulf of Mexico in 2015. The action will reduce discards of non-blacknose SCS while increasing the utilization of available Atlantic non-blacknose SCS quota and rebuilding and ending overfishing of Atlantic blacknose sharks.

    Since the completion of the 2007 blacknose shark stock assessment, NMFS has conducted numerous rulemakings regarding all SCS, including blacknose sharks, in order to rebuild blacknose sharks and end overfishing, consistent with the 2006 Consolidated HMS FMP. The 2007 stock assessment of blacknose sharks assessed blacknose sharks as one stock, and determined that the stock was overfished and overfishing was occurring.

    On June 1, 2010 (75 FR 30484), NMFS published a final rule for Amendment 3 to the 2006 Consolidated HMS FMP that, among other things, established blacknose shark and non-blacknose SCS quotas. In the proposed rule, because of the blacknose stock status, NMFS proposed prohibiting the use of gillnet gear in waters south of North Carolina. However, based on comments received during that rulemaking that fishermen could catch non-blacknose SCS while avoiding blacknose sharks when using gillnet gear, the final rule continued to allow landings of SCS sharks with gillnet gear, but linked the quotas for the non-blacknose SCS and blacknose shark fisheries to create an incentive to avoid the incidental catch of blacknose sharks. After that rulemaking, in monthly landings updates and other documents, NMFS encouraged fishermen to avoid blacknose sharks in order to extend the non-blacknose SCS season. For the first two years under this quota linkage, fishermen successfully avoided landing blacknose sharks. This avoidance meant that both the non-blacknose SCS fishery remained open most of the year and the blacknose shark quota was not exceeded.

    In 2011, a new stock assessment for blacknose sharks was completed. This assessment concluded that there are two stocks of blacknose sharks—one in the Atlantic and one in the Gulf of Mexico and assessed them separately. The assessment for the Atlantic blacknose shark stock was accepted by the peer reviewers, and NMFS determined that the Atlantic blacknose shark stock is overfished and overfishing is occurring (76 FR 62331, October 7, 2011). The assessment for the Gulf of Mexico stock was not accepted by the peer reviewers. As such, NMFS declared the stock status to be unknown. On July 3, 2013 (78 FR 40318), NMFS published a final rule for Amendment 5a to the 2006 Consolidated HMS FMP which, among other things, divided the blacknose quota into separate regional quotas (Atlantic and Gulf of Mexico) consistent with the assessment determination that there are two separate stocks. NMFS continued to link the regional blacknose and non-blacknose SCS quotas and therefore divided the non-blacknose SCS quota into separate regional quotas as well, to parallel the division of the blacknose shark stocks. While NMFS established quotas for the two regions, those quotas were not further broken down into commercial retention limits because the quota linkages between the blacknose shark fishery and the non-blacknose SCS fishery alone were expected to create adequate incentive to avoid blacknose sharks.

    More recently, NMFS has seen signs that fishermen using gillnet gear in the Atlantic region are no longer avoiding blacknose sharks. In 2012, the overall blacknose shark quota for the Atlantic and Gulf of Mexico regions was exceeded, and the blacknose shark quota in the Atlantic region was exceeded again in 2015. Additionally, the blacknose and non-blacknose SCS fisheries have been closing earlier each year (September 30, 2013 (blacknose sharks and non-blacknose SCS in the Atlantic and Gulf of Mexico regions); July 28, 2014 (blacknose sharks and non-blacknose SCS in the Atlantic region); June 7, 2015 (blacknose sharks and non-blacknose SCS in the Atlantic region)). A review of the landings data indicate the early closures are a result of some fishermen who have been landing large numbers of blacknose sharks relative to other fishermen. These early closures mean that the non-blacknose SCS quota remains underutilized (less than 40 percent was harvested in 2013 and less than 60 percent harvested in both 2014 and 2015). These closures also mean that non-blacknose SCS are discarded even if quota is available because all SCS species must be discarded once the fisheries are closed.

    To reduce the discards of non-blacknose SCS while not increasing landings of blacknose sharks, on August 18, 2015 (80 FR 50074), NMFS published a final rule for Amendment 6 to the 2006 Consolidated HMS FMP. This final rule, among other things, prohibited the retention and landings of blacknose sharks in the Gulf of Mexico region. In the Atlantic region, NMFS established a management boundary along 34° N. latitude for the non-blacknose SCS fishery, removed the quota linkage between non-blacknose SCS and blacknose shark quotas north of the boundary, and prohibited the retention and landings of blacknose sharks north of that boundary since blacknose sharks are rarely caught there. South of the new management boundary, NMFS maintained the non-blacknose SCS and blacknose shark quota linkage and reduced the blacknose shark quota to account for the potential dead discards north of the boundary. Thus, in August 2015, after implementation of Amendment 6, the non-blacknose SCS fishery re-opened north of 34° N. latitude (August 18, 2015, 80 FR 50074) upon publication of the final rule. From August through December, fishermen were able to land an additional 40.5 mt dw, or 15 percent of the non-blacknose SCS quota, after the fishery reopened. However, the non-blacknose SCS fishery remained closed south of 34° N. latitude and fishermen in that area were still required to discard all non-blacknose SCS caught after June 7, 2015.

    NMFS recently took action again to close the commercial blacknose shark and non-blacknose SCS fisheries in the Atlantic region south of 34° N. latitude because the commercial landings of Atlantic blacknose sharks for the 2016 fishing season were projected to exceed 80 percent of the available commercial quota (81 FR 33604; May 29, 2016). This indicates that some fishermen south of 34° N. latitude are continuing to land large numbers of blacknose sharks relative to other fishermen even though this results in earlier closures and the potential loss of access to the available non-blacknose SCS quota because of the linkage.

    Additionally, since publishing Amendment 6, NMFS has received comments from fishermen and the South Atlantic Fishery Management Council stating that fishermen in the Spanish mackerel gillnet fishery with HMS permits are having to discard otherwise marketable non-blacknose SCS south of the 34° N. latitude management boundary due to the quota linkage, even though non-blacknose SCS quota remains available. Thus, in preparing this proposed rule NMFS considered alternatives to prevent the overharvest and discard of blacknose sharks, maximize the utilization of available non-blacknose SCS quota, extend the season for non-blacknose SCS fisheries, and improve economic opportunities. Specifically, NMFS considered establishing commercial retention limits within the existing quotas for either the blacknose sharks or non-blacknose SCS in the Atlantic region south of 34° N. latitude.

    NMFS prepared a draft EA, RIR, and an IRFA, which present and analyze the anticipated environmental, social, and economic impacts of each alternative considered for this proposed rule. The complete list of alternatives and related analyses is provided in the draft EA/RIR/IRFA, and is not repeated here in its entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed rulemaking is available from NMFS (see ADDRESSES).

    NMFS considered three alternatives for this proposed action. All three alternatives would apply only in the SCS fishery south of 34°00′ N. latitude in the Atlantic region. Alternative 1, the No Action alternative, would maintain the status quo and the current regulations and practices in the blacknose and non-blacknose SCS fishery. Alternative 2 would establish a commercial retention limit for non-blacknose SCS that would be in effect once the blacknose shark quota is reached for directed shark limited access permit holders. Alternative 3 would establish a commercial retention limit for blacknose sharks for all Atlantic HMS limited access permit holders that would be in effect while the blacknose shark quota is available; once the blacknose shark quota is reached, retention of blacknose would be prohibited. Under both Alternatives 2 and 3, NMFS considered a range of three sub-alternatives.

    Under Alternative 1, the No Action alternative, NMFS would not implement any new commercial retention limits for blacknose sharks or non-blacknose SCS in the Atlantic region for Atlantic shark directed limited access permit holders (shark incidental limited access permit holders are already limited to a retention limit of 16 combined SCS and pelagic sharks per trip). Instead, the blacknose and non-blacknose SCS quotas would continue to be linked by region and, south of 34°00′ N. latitude, access to both quotas would be closed when the blacknose shark quota (17.2 mt dw; 37,921 lb dw) is reached. Logbook data from 2010 through 2015 indicates that on average fishermen take 207 trips per year to land the blacknose shark quota and land approximately 212 lb dw of blacknose sharks per trip. However, the average landings per trip are increasing, and correspondingly, the number of trips needed to land the quota is decreasing. In 2015, the average blacknose shark landings were 402 lb dw per trip, and logbook data indicate that fishermen took approximately 94 trips to harvest the baseline blacknose shark quota. Given that the fishing season has been closing earlier each year for the last several years, NMFS expects the trend of decreasing number of trips and increasing weight per trip to continue if no further action is taken. Under this alternative, available non-blacknose SCS quota would continue to go unharvested, likely in increasingly large amounts. Because this alternative would maintain the status quo, this alternative would have minor adverse ecological impacts on blacknose sharks as the overharvests may continue to occur and blacknose sharks may continue to be subject to overfishing. However, this alternative would likely have positive ecological benefits for non-blacknose SCS because the early closure of the fishery leaves the non-blacknose SCS quota underutilized. Overall, maintaining the status quo for both the blacknose shark and non-blacknose SCS management groups would have neutral to positive ecological impacts.

    With regard to socioeconomic impacts, Alternative 1 would likely continue to result in underutilization of the non-blacknose SCS quota as a result of the early closure of both blacknose and non-blacknose SCS management groups. Between 2014 and 2015, the Atlantic non-blacknose SCS quota has been underutilized by an average of 314,625 lb dw (54 percent of the quota). This represents foregone revenues of $298,583 assuming an average value of $0.74/lb dw for meat and $4.18/lb dw for fins. NMFS expects that Alternative 1, the No Action alternative, would have minor adverse socioeconomic impacts on the non-blacknose SCS fisheries as it would continue to allow for underutilization of the Atlantic non-blacknose SCS quota.

    Under Alternative 2, NMFS would implement a commercial retention limit for non-blacknose SCS and remove the quota linkage to blacknose sharks south of 34°00′ N. latitude. In Amendment 3 to the 2006 Consolidated HMS FMP (75 FR 30484; June 1, 2010), NMFS linked the blacknose shark and non-blacknose SCS quotas to address the blacknose shark stock determination and implement measures to rebuild and end overfishing of blacknose sharks. Without the quota linkage, fishermen would be able to continue to harvest non-blacknose SCS after the blacknose shark quota was fully harvested but would need to discard blacknose sharks once that fishery closed. While many fishermen are able to avoid blacknose sharks when fishing for non-blacknose SCS, in order to allow for any non-blacknose SCS landings after a blacknose shark closure, NMFS estimated how many blacknose sharks could potentially be discarded dead by vessels harvesting non-blacknose SCS once the blacknose shark quota (17.2 mt dw; 37,921 lb dw) has been harvested and the fishery is closed. This additional mortality would be counted against the total allowable catch of blacknose sharks upfront, and the overall commercial retention limit for blacknose shark quota would be reduced accordingly.

    Under Alternative 2a, NMFS would implement a commercial retention limit of 50 non-blacknose SCS per trip once the blacknose shark quota is reached and remove the quota linkage to blacknose sharks for shark directed limited access permit holders fishing south of 34°00′ N. latitude. Under this alternative, NMFS would also reduce the baseline blacknose shark quota to 15.0 mt dw (33,069 lb dw) due to the estimated number of blacknose sharks that would be discarded dead while harvesting non-blacknose SCS (985 sharks). NMFS expects that this alternative would have minor adverse ecological impacts on blacknose sharks in the Atlantic region as this alternative would likely not change the current fishing practices and the commercial quota for blacknose sharks would still likely be landed quickly, potentially resulting in overharvests due to data reporting lags. Additionally, this alternative would have neutral ecological impacts on non-blacknose SCS in the region as fishermen could land 50 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota, without exceeding it. Overall, the commercial retention limit for non-blacknose SCS would have minor adverse ecological impacts for the SCS fishery, which means the fishery for all four SCS species in the South Atlantic management area. The reduction in blacknose shark quota could cause the closure of blacknose shark fishery even earlier in the year but this closure would no longer close the non-blacknose SCS fishery. This reduction in the blacknose shark quota would result in estimated lost revenues of $5,193 compared to the current baseline quota under Alternative 1, assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. However, this alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 50 non-blacknose SCS per trip, generating $34,470 in revenue from for non-blacknose SCS. As such, this alternative should have minor beneficial economic impacts on the overall SCS fishery.

    NMFS also analyzed two other alternatives that would implement commercial retention limits when the blacknose shark quota is reached and remove the quota linkage to blacknose sharks for shark directed limited access permit holders. Alternative 2b would establish a commercial retention limit of 150 non-blacknose SCS, and Alternative 2c would establish a commercial retention limit of 250 for non-blacknose SCS. Under Alternative 2b, the baseline blacknose shark quota would be adjusted to 10.5 mt dw (23,148 lb dw) due to the estimated number of dead discard blacknose sharks (2,956 sharks) which likely would occur in the non-blacknose SCS fishery. Similar to Alternative 2a, NMFS expects that this alternative would have minor adverse ecological impacts on the blacknose sharks in the Atlantic region as some directed permit holders could continue to land large numbers of blacknose sharks relative to other fishermen until the blacknose shark quota is landed, which could increase the amount of blacknose shark dead discards after the blacknose fishing season is closed because the quota linkage would be removed. Similar to Alternative 2a, this alternative would have neutral ecological impacts on the non-blacknose sharks in the region as fishermen could land 150 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota without exceeding it. However, this alternative would have minor adverse ecological impacts for the overall SCS fishery because dead discards would continue after the blacknose shark quota is reached. The reduction in blacknose shark quota would result in estimated lost revenues of $15,808, assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. This alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 150 non-blacknose SCS per trip, resulting in a revenue gain of $65,139 for non-blacknose SCS. As such, this alternative should have minor beneficial economic impacts on the overall SCS fishery.

    Under Alternative 2c, the baseline blacknose shark quota would be reduced to 6.1 mt dw (13,448 lb dw) due to the estimated number of dead discard blacknose sharks (4,927 sharks) which likely would occur in the non-blacknose SCS fishery under this scenario. NMFS expects that this alternative would have minor adverse ecological impacts on the blacknose sharks in the Atlantic region as some directed permit holders would continue to land large numbers of blacknose sharks relative to other fishermen until the blacknose shark quota is landed, increasing the amount of blacknose dead discards after the blacknose fishing season is closed due to the elimination of the quota linkage. This alternative would have neutral ecological impacts on the non-blacknose sharks in the region as fishermen could land 250 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota without exceeding it. Similar to Alternative 2a, the commercial retention limit for non-blacknose SCS would have minor adverse ecological impacts for the overall SCS fishery because dead discards would continue after the blacknose shark quota is reached. This alternative would result in estimated lost revenues of $26,217 assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. This alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 250 non-blacknose SCS per trip, resulting in a revenue gain of $80,339 for non-blacknose SCS. As such, this alternative should have moderate beneficial economic impacts on the overall SCS fishery.

    Under Alternative 3, NMFS would establish a commercial retention limit for blacknose sharks per trip for all Atlantic HMS limited access permit holders in the Atlantic region south of 34°00′ N. latitude when the blacknose shark quota is available; when the blacknose shark quota is reached, retention of blacknose sharks would be prohibited. To determine the number of trips that would harvest the blacknose shark quota, NMFS divided the current baseline shark quota (17.2 mt dw or 37,921 lb dw) by the product of the retention limit of the sub-alternative and 5 lb dw (which is the average weight of each blacknose shark, based on observer data). For example, under Alternative 3c, the preferred alternative, NMFS would establish a commercial retention limit of eight blacknose sharks per trip for Atlantic HMS directed and incidental limited access permit holders. This retention limit would allow an average of 40 lb dw blacknose sharks per trip (8 sharks * 5 lb dw) and would result in an estimated 948 trips to land the baseline blacknose shark quota (37,919 lb dw/40 lb dw). This retention limit is be much lower when compared to the blacknose sharks landed per trip and number of trips that harvested the quota in previous years. In 2014 and 2015, between 243 and 402 lb dw of blacknose sharks were harvested per trip, and the quota was fully harvested in approximately 156 and 94 trips, respectively. Since most fishermen prefer not to discard any fish, NMFS believes this alternative has the potential to influence fishermen to revert to the fishing practices observed in 2010 and 2011 when blacknose sharks were actively avoided when fishing for non-blacknose SCS. NMFS expects that this alternative would have moderate beneficial ecological impacts on the blacknose sharks in the Atlantic region since the lower blacknose shark landings per trip would reduce the rate of landings such that the quota is not exceeded and might result in underharvests. Thus, this alternative could aid in the rebuilding of blacknose sharks and help prevent quota exceedances. This alternative would also have neutral ecological impacts for non-blacknose SCS as NMFS expects that that quota would be fully utilized without being exceeded. Overall, the commercial retention limit for blacknose sharks would have moderate beneficial ecological impacts for the overall SCS fishery. Additionally, this alternative would also have minor beneficial socioeconomic impacts as the fishermen could still land blacknose sharks and the fishery would remain open for a longer period of time, increasing SCS revenues by as much as $98,664 a year on average if the non-blacknose SCS quota is fully utilized. Any financial losses due to underutilization of the blacknose shark quota would be minimal by comparison.

    NMFS also analyzed two other blacknose shark retention limit alternatives that are not preferred at this time. Alternative 3a would establish a retention limit of 50 blacknose sharks per trip for directed limited access permit holders (shark incidental limited access permit holders would continue to be limited to a total of 16 pelagic and SCS sharks per trip). This retention limit would allow an average of 250 lb dw blacknose sharks per trip and would result in an estimated 152 trips to land the blacknose shark quota. The retention limit of 50 blacknose sharks could potentially cause the SCS fisheries to close as early as June or July if every trip landing blacknose sharks lands the full retention limit, although this is highly unlikely. Under Alternative 3b, NMFS would establish a commercial retention limit of 16 blacknose sharks per trip for directed limited access permit holders. This retention limit would allow an average of 80 lb dw blacknose sharks per trip and would result in an estimated 474 trips to land the full blacknose shark quota. NMFS expects that both of these alternatives would have minor to moderate beneficial ecological impacts on Atlantic blacknose sharks as all Atlantic shark limited access permit holders would be expected to revert to how they had been fishing in 2010 and 2011 and actively avoiding blacknose sharks when fishing for non-blacknose SCS. For non-blacknose SCS, these alternatives would have neutral impacts as the stock would be fished under the level established, resulting in a fishery that would be underutilized. Overall, establishing the commercial retention limit would have beneficial impacts for Alternatives 3a and 3b for the SCS fishery. Additionally, these alternatives would also have minor beneficial socioeconomic impacts to the Atlantic SCS fishery as they would allow for the potential full-utilization of the non-blacknose SCS quota, and potentially increase average revenues by $98,664 per year. Any foregone revenue due to under-utilization of the blacknose shark quota would be minimal in comparison.

    Currently, NMFS prefers to establish a commercial retention limit of eight blacknose sharks per trip (Alternative 3c) since the retention limit would have moderate beneficial ecological impacts on blacknose sharks, neutral ecological impacts on non-blacknose SCS, and minor beneficial socioeconomic impacts for SCS fishermen because they should be able to fully utilize the non-blacknose SCS quota. NMFS does not prefer Alternative 1 (No Action alternative) since this alternative does not meet the objectives of the rule, could result in continued overharvests of the blacknose shark quota, and would continue to underutilize the non-blacknose shark SCS quota. NMFS does not prefer Alternatives 2a, 2b, and 2c establishing a commercial retention limit for non-blacknose SCS, because that could lead to an increase in dead discards of blacknose sharks while targeting non-HMS species and non-blacknose SCS depending on the commercial retention limit. In addition, the reduced blacknose shark quotas due to the estimated dead discards of blacknose sharks when the quota linkage is removed, would implement a commercial retention limit for non-blacknose SCS south of 34°00′ N. latitude earlier in the fishing season when the blacknose shark fishery is closed than the preferred alternative. Thus, the non-blacknose SCS quota may not be fully utilized under the alternatives. Furthermore, NMFS does not expect the economic benefits of Alternatives 2a, 2b, or 2c to be as high as the benefits expected under any of the sub-alternatives under Alternative 3. NMFS does not prefer Alternative 3a which would set a retention limit of 50 blacknose sharks per trip could cause the blacknose shark quota to be filled relatively quickly result in and the closure of the non-blacknose SCS fishery before the end of the fishing season. Regarding Alternative 3b, which would set a retention limit of 16 blacknose sharks per trip, at the HMS Advisory Panel meeting in March 2016, NMFS received comments from Panel members who supported maximizing the number of trips per year to land blacknose sharks as would be done in Alternative 3c rather than Alternative 3b. Panel members were concerned that Alternative 3b would not guarantee a year-round fishery for SCS because some fishermen would land the maximum number per trip (16 blacknose sharks per trip) and close the fishery and NMFS agreed with this statement.

    Administrative Changes

    In addition to the preferred alternative described above, NMFS is proposing to make two small, unrelated administrative changes to existing regulatory text. Specifically, in two locations in § 635.24(a), the regulations make reference to paragraphs (a)(4)(iv) through (vi); those cross-references are unnecessary because the Commercial Caribbean Small Boat permit under (a)(4)(iv) is a separate permit from the limited access permits and there is no (a)(4)(v) regulation. Because NMFS is already proposing changes to § 635.24(a) through this rulemaking, NMFS has decided to use this opportunity to propose removal of those cross-references. This action is administrative in nature, reflects current practice, and would not have environmental impacts or effects on current fishing operations.

    Public Hearings

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax and comments may also be submitted at a public hearing. NMFS solicits comments on this proposed rule through September 20, 2016. During the comment period, NMFS will hold one public hearing and one conference call for this proposed rule. The hearing locations will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Guý DuBeck at 301-427-8503, at least 7 days prior to the meeting. NMFS has also asked to present information on the proposed rule and draft EA to the South Atlantic Fishery Management Councils at their meetings during the public comment period. Please see their meeting notices for dates, times, and locations.

    Table 1—Dates, Times, and Locations of Upcoming Public Hearing and Conference Call. Venue Date/time Meeting locations Location contact information Conference call August 16, 2016, 2 p.m.-4 p.m To participate in conference call, call: (888) 635-5002, Passcode: 6429428. To participate in webinar, RSVP at: https://noaaevents2.webex.com/noaaevents2/onstage/g.php?MTID=e2a3c0722f8a4bee1c303445a56b6a065, A confirmation email with webinar log-in information will be sent after RSVP is registered. Public Hearing August 24, 2016, 5 p.m.-8 p.m Cocoa Beach, FL Cocoa Beach Public Library, 550 North Brevard Avenue, Cocoa Beach, FL 32931, (321) 868-1104.

    The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another). At the beginning of the conference call, the moderator will explain how the conference call will be conducted and how and when attendees can provide comments. The NMFS representative will attempt to structure the meeting so that all the attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do not they may be asked to leave the hearing or may not be allowed to speak during the conference call.

    Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule would have on small entities if adopted. A description of the action, why it is being considered, and the legal basis for this action are contained below. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

    Section 603(b)(1) requires Agencies to describe reasons why the action is being considered. This proposed action is designed to implement management measures for the blacknose and non-blacknose SCS fisheries that will reduce dead discards of non-blacknose SCS while increasing the utilization of the Atlantic non-blacknose SCS quota and rebuilding and ending overfishing of Atlantic blacknose sharks.

    Section 603(b)(2) requires Agencies to describe the objectives of the proposed rule. NMFS has identified the following objectives, which are consistent with existing statutes such as the Magnuson-Stevens Act and its objectives, with regard to this proposed action:

    • Obtaining optimum yield from the blacknose and non-blacknose-SCS fisheries;

    • Reducing dead discards of sharks, particularly small coastal sharks;

    • Continuing to rebuild the Atlantic blacknose shark stock; and

    • Ending overfishing of the Atlantic blacknose shark stock.

    Section 603(b)(3) of the Regulatory Flexibility Act requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under the SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register (FR), which NMFS did on December 29, 2015 (80 FR 81194). In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS permit holders to be small entities because they all had average annual receipts of less than $11 million for commercial fishing.

    As of 2015, the proposed rule would apply to the approximately 224 directed commercial shark permit holders and 275 incidental commercial shark permit holders. Not all permit holders are active in the shark fishery in any given year. Active directed permit holders are defined as those with valid permits that landed one shark based on HMS electronic dealer reports. Of the 499 permit holders, only 27 permit holders landed SCS in the Atlantic region and, of those, only 13 landed blacknose sharks. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions.

    Section 603(b)(4) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. The action does not contain any new collection of information, reporting, or record-keeping requirements. The alternatives considered would adjust the commercial retention limits for the SCS fisheries, which would be a new compliance requirement for the shark fishery participants in the Atlantic region south of 34°00′ N. latitude but is similar to other compliance requirements the fishermen already follow.

    Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed rule. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include the Magnuson-Stevens Act, the Atlantic Tunas Convention Act (ATCA), the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed rule has been determined not to duplicate, overlap, or conflict with any Federal rules.

    One of the requirements of an IRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

    In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, NMFS cannot establish differing compliance requirements for small entities or exempt small entities from compliance requirements. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives.

    The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.

    Alternative 1, the No Action alternative, would not implement any new commercial retention limits for blacknose sharks and non-blacknose SCS in the Atlantic region south of 34°00′ N. latitude beyond those already in effect for current Atlantic shark limited access permit holders. NMFS would continue to allow fishermen with a direct limited access permit to land unlimited sharks per trip (within available quotas), and allow fishermen with an incidental permit to land 16 combined SCS and pelagic sharks per vessel per trip. Amendment 3 to the 2006 Consolidated HMS FMP established, among other things, a quota for blacknose shark separate from the SCS quota. The 2011 blacknose shark stock assessment determined that separate stocks of blacknose sharks existed in the Gulf of Mexico and the Atlantic Ocean. Amendment 5a to the 2006 Consolidated HMS FMP established, among other things, regional quotas for non-blacknose SCS and blacknose sharks in the Gulf of Mexico and the Atlantic Ocean in 2013. These blacknose shark and non-blacknose SCS quotas are linked by region and the regional SCS fishery is closed when the blacknose shark quota is reached. These linkages have resulted in the early closure of the entire SCS fishery due to high blacknose shark landings. Closure of the fishery as a result of Atlantic blacknose rapid harvest leaves the non-blacknose shark SCS quota underutilized. Between 2014 and 2015, the Atlantic non-blacknose SCS quota has been underutilized by an average of 314,625 lb dw or 54 percent of the quota. This represents an average ex-vessel loss of $298,583, assuming an average value of $0.74/lb dw for meat and $4.18/lb dw for fins. Based on the 27 vessels that landed SCS in the Atlantic, the per-vessel impact would be an approximate loss of $11,059 per year.

    Alternative 2a would implement a commercial retention limit of 50 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. Additionally, this alternative would adjust the blacknose shark quota to 15.0 mt dw (33,069 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $5,193 for the fishery, while increased landings of non-blacknose SCS would result in an overall estimated average ex-vessel revenue gain of $34,470 for the fishery. NMFS estimates that this bycatch retention limit would result in a net gain of $29,277 in average ex-vessel revenue for the fishery, or $1,084 per vessel for the 27 vessels that targeted non-blacknose SCS in 2015.

    Alternative 2b would implement a commercial retention limit of 150 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. Additionally, this alternative would adjust the blacknose shark quota to 10.5 mt dw (23,148 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $15,808 for the fishery, while increased landings of non-blacknose SCS would result in an overall estimated average ex-vessel revenue gain of $65,139 for the fishery. NMFS estimates that this bycatch retention limit would result in a net gain of $49,331 in average ex-vessel revenue for the fishery, or approximately $1,827 per vessel for the 27 vessels that targeted non-blacknose SCS in 2015.

    Alternative 2c would implement a commercial retention limit of 250 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. This alternative would also adjust the blacknose shark quota to 6.1 mt dw (13,448 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $26,217 for the fishery, while increased landings of non-blacknose SCS would result in an estimated average ex-vessel revenue gain of $80,339 for the fishery. NMFS estimates that this bycatch retention limit would result in a net gain of $54,122 in average ex-vessel revenue for the fishery, or approximately $2,004 per vessel for the 27 vessels that targeted non-blacknose SCS in 2015.

    Alternative 3a would establish a commercial retention limit of 50 blacknose sharks per trip for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would most likely convert the blacknose shark fishery to an incidental fishery as the per-trip value of 50 blacknose sharks would only be $270 ($218 for meat and $52 for fins) for the estimated 13 vessels that land blacknose sharks in the Atlantic. Based on 2015 HMS electronic reporting system (eDealer) reports, 49 trips, or 32% of the overall number of trips, landed blacknose sharks in excess of a commercial retention limit of 50 blacknose sharks (250 lb dw). This alternative would likely increase the number of trips needed to fill the blacknose shark quota when compared to the average from 2010 through 2015 under Alternative 1. A retention limit of 50 blacknose sharks could potentially cause the SCS fisheries to close as early as June or July if every trip landing blacknose sharks landed the full retention limit, but this is highly unlikely.

    Alternative 3b would establish a commercial retention limit of 16 blacknose sharks per trip all Atlantic shark limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would have minor beneficial economic impacts as a retention limit of this size would allow an average of 80 lb dw blacknose sharks per trip and would take approximately 474 trips for fishermen to land the full blacknose shark quota. Based on 2015 eDealer reports, 83 trips, or 55% of the overall number of trips, landed blacknose sharks in excess of a commercial retention limit of 16 blacknose sharks (80 lb dw). This alternative would dramatically increase the number of trips needed to fill the blacknose shark quota when compared to the yearly averages under Alternative 1. Currently, the linkage between the blacknose shark quota and the non-blacknose SCS quota causes the closure of both fisheries once the smaller blacknose shark quota is attained. NMFS expects that, under this alternative, the blacknose shark quota would not be filled and therefore would not close the SCS fisheries in the South Atlantic region. Thus, this alternative would have minor beneficial economic impacts to the Atlantic SCS fisheries as it would allow for the potential full-utilization of the non-blacknose SCS quota, and potentially increase total ex-vessel revenue by as much as $298,583 a year. However, given monthly trip rates in the Atlantic, the non-blacknose SCS quota is likely to remain under-utilized. Using calculations based on observed trip and landings rates of non-blacknose SCS in 2015, a more likely result of this alternative would be additional landings of 104,962 lb dw of non-blacknose SCS valued at $98,664, or approximately $3,654 per vessel for the 27 vessels that participated in the fishery in 2015. Any financial losses due to under-utilization of the blacknose shark quota would be minimal in comparison.

    Alternative 3c, the preferred alternative, would establish a commercial retention limit of eight blacknose sharks per trip all Atlantic shark limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would have moderate beneficial economic impacts as a retention limit of this size would allow an average of 40 lb dw blacknose sharks per trip and would take approximately 948 trips to land the full blacknose shark quota. Based on 2015 eDealer reports, 105 trips, or 69% of the overall number of trips, landed blacknose sharks in excess of the commercial retention limit of eight blacknose sharks (40 lb dw). This alternative would dramatically increase the number of trips needed to fill the blacknose shark quota when compared to the yearly averages under Alternative 1. Currently, the linkage between the blacknose shark quota and the non-blacknose SCS quota causes the closure of both fisheries once the smaller blacknose shark quota is attained. NMFS expects that, under this alternative, the blacknose shark quota would not be filled and would not close the SCS fisheries in the Atlantic region south 34°00′ N. latitude. Thus, this would have moderate beneficial economic impacts as the fishermen would still be allowed to land blacknose sharks and the fishery would remain open for a longer period of time, significantly increasing non-blacknose SCS revenues by as much as $298,583 a year on average if the non-blacknose SCS quota is fully utilized. However, given monthly trip rates in the Atlantic, the non-blacknose SCS quota is likely to remain under-utilized. Using calculations based on observed trip and landings rates of non-blacknose SCS in 2015, a more likely result of this alternative would be additional landings of 104,962 lb dw of non-blacknose SCS valued at $98,664, or approximately $3,654 per vessel for the 27 vessels that participated in the fishery in 2015. Any financial losses due to under-utilization of the blacknose shark quota would be minimal in comparison.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: July 28, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

    PART 635−ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.24, revise paragraphs (a)(2), (a)(3), (a)(4)(ii), and (a)(4)(iii) to read as follows:
    § 635.24 Commercial retention limits for sharks, swordfish, and BAYS tunas.

    (a) * * *

    (2) The commercial retention limit for LCS other than sandbar sharks for a person who owns or operates a vessel that has been issued a directed LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued a directed LAP for sharks and that has been issued a shark research permit but does not have a NMFS-approved observer on board, may range between zero and 55 LCS other than sandbar sharks per vessel per trip if the respective LCS management group(s) is open per §§ 635.27 and 635.28. Such persons may not retain, possess, or land sandbar sharks. At the start of each fishing year, the default commercial retention limit is 45 LCS other than sandbar sharks per vessel per trip unless NMFS determines otherwise and files with the Office of the Federal Register for publication notification of an inseason adjustment. During the fishing year, NMFS may adjust the retention limit per the inseason trip limit adjustment criteria listed in § 635.24(a)(8).

    (3) A person who owns or operates a vessel that has been issued an incidental LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued an incidental LAP for sharks and that has been issued a valid shark research permit but does not have a NMFS-approved observer on board, may retain, possess, or land no more than 3 LCS other than sandbar sharks per vessel per trip if the respective LCS management group(s) is open per §§ 635.27 and 635.28. Such persons may not retain, possess, or land sandbar sharks.

    (4)* * *

    (ii) A person who owns or operates a vessel that has been issued a shark LAP and is operating south of 34°00′ N. lat. in the Atlantic region, as defined at § 635.27(b)(1), may retain, possess, land, or sell blacknose and non-blacknose SCS if the respective blacknose and non-blacknose SCS management groups are open per §§ 635.27 and 635.28. Such persons may retain, possess, land, or sell no more than 8 blacknose sharks per vessel per trip. A person who owns or operates a vessel that has been issued a shark LAP and is operating north of 34°00′ N. lat. in the Atlantic region, as defined at § 635.27(b)(1), or a person who owns or operates a vessel that has been issued a shark LAP and is operating in the Gulf of Mexico region, as defined at § 635.27(b)(1), may not retain, possess, land, or sell any blacknose sharks, but may retain, possess, land, or sell non-blacknose SCS if the respective non-blacknose SCS management group is open per §§ 635.27 and 635.28.

    (iii) Consistent with paragraph (a)(4)(ii) of this section, a person who owns or operates a vessel that has been issued an incidental shark LAP may retain, possess, land, or sell no more than 16 SCS and pelagic sharks, combined, per vessel per trip, if the respective fishery is open per §§ 635.27 and 635.28. Of those 16 SCS and pelagic sharks per vessel per trip, no more than 8 shall be blacknose sharks.

    [FR Doc. 2016-18253 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    81 149 Wednesday, August 3, 2016 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collections Being Reviewed by the U.S. Agency for International Development; Comments Requested SUMMARY:

    U.S. Agency for International Development (USAID) is making efforts to reduce the paperwork burden. USAID invites the general public and other Federal agencies to take this opportunity to comment on the following proposed and/or continuing information collections, as required by the Paperwork Reduction Act for 1995. Comments are requested concerning:

    (a) The accuracy of the burden estimates; (b) ways to enhance the quality, utility, and clarity of the information collected; and (c) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques, or other forms of information technology.

    DATES:

    Submit comments on or before October 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Sylvia Joyner, Bureau for Management, Office of Management Services, Information and Records Division, U.S. Agency for International Development, Room 2.07C, RRB, Washington, DC 20523, (202) 712-5007 or via email [email protected]

    Comments: Send comments via email to [email protected], U.S. Agency for International Development, Office of Acquisition and Assistance, 1300 Pennsylvania Avenue NW., SA-44 Room 867-C, Washington, DC 20523, 202-567-4673.

    SUPPLEMENTARY INFORMATION:

    OMB No:

    Form No.: AID 309-1.

    Title: CONTRACT WITH AN INDIVIDUAL FOR PERSONAL SERVICES.

    Type of Review: A Revised Information Collection.

    Purpose: United States Agency for International Development must collect information for reporting purposes to Congress and Office of Acquisition and Assistance Contract Administration. This collection is to collect personal information on applicants for USAID personal services contracts and is used to award a personal services contract with required signatures.

    Annual Reporting Burden:

    U.S. Respondents: 550.

    Total Annual U.S. Responses: 550.

    Total Annual Hours Requested: 137.50 hours.

    Dated: July 18, 2016. Lynn Winston, Chief, Information and Records Division, US Agency for International Development.
    [FR Doc. 2016-17375 Filed 8-2-16; 8:45 am] BILLING CODE M
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2015-0096] The Scotts Co. and Monsanto Co.; Notice of Intent To Prepare an Environmental Impact Statement for Determination of Nonregulated Status of Glyphosate-Resistant Creeping Bentgrass AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    We are announcing that the Animal and Plant Health Inspection Service intends to prepare an environmental impact statement (EIS) to evaluate the environmental impacts that may result from the approval of a new petition for nonregulated status of glyphosate-resistant creeping bentgrass (Agrostis stolonifera L.) (event ASR368) from The Scotts Company and Monsanto Company following withdrawal of their 2003 petition. Issues to be addressed in the EIS include the potential environmental impacts to managed natural and non-agricultural lands, agricultural production systems, the physical environment, biological resources, human health, socioeconomics, federally listed threatened or endangered species, and cultural or historic resources. This notice of intent (NOI) replaces a previous NOI published in September 2004 and initiates a fresh public scoping process and stakeholder engagement for the purpose of preparing an EIS. We are requesting public comments to further frame the scope of the issues to be included in the EIS, including alternatives and environmental impacts.

    DATES:

    We will consider all comments that we receive on or before September 2, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0096.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0096, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0096 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    Other Information: We have retained the public comments submitted in response to previous notices on this subject. Due to the amount of time that has passed since these comments were originally submitted, some of the comments may need to be updated with newer information. These earlier comments will be assessed as long as they reflect conditions in the current agricultural and natural environment and are relevant to issues studied in the environmental impact statement (EIS). We welcome new submissions offering scientific facts, professional observations, and perspectives about how to evaluate any new material available for analysis in the EIS.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Sidney Abel, Assistant Deputy Administrator, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1238; (301) 851-3896, email: [email protected] To obtain copies of the petition, contact Ms. Cindy Eck at (301) 851-3882, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Under the authority of the plant pest provisions of the Plant Protection Act (PPA), as amended (7 U.S.C. 7701 et seq.), the regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.”

    The regulations in 7 CFR 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) seeking a determination that an article should not be regulated under 7 CFR part 340. Paragraphs (b) and (c) of § 340.6 describe the form that a petition for a determination of nonregulated status must take and the information that must be included in the petition.

    APHIS received a new petition from The Scotts Company (Scotts) and Monsanto Company (Monsanto), APHIS Petition Number 15-300-01p, seeking a determination of nonregulated status for creeping bentgrass (Agrostis stolonifera L.) that is resistant to glyphosate, identified as event ASR368 or Roundup Ready® creeping bentgrass. The petition states that this regulated article is unlikely to pose a plant pest risk and, therefore, should not be a regulated article under APHIS' regulations in 7 CFR part 340. These part 340 regulations are authorized by the PPA to prevent the introduction or dissemination of plant pests, and the decision on whether or not to approve the petition request will be based on this standard.

    A total of six notices have been published in the Federal Register related to the current and previous petition. The first notice,1 published on January 5, 2004, advised the public of receipt of petition 03-104-01p and solicited comments from the public on the petition. The second notice,2 published on September 24, 2004, announced APHIS' intent to prepare an environmental impact statement (EIS) in accordance with the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.) to provide the Agency with a review and analysis of potential environmental impacts associated with the petition request. The third notice,3 published on November 18, 2004, reopened the comment period on the second notice and announced APHIS' intent to hold a public meeting to promote further public involvement in the development of the EIS. On April 11, 2005, a fourth notice 4 invited the public to attend public EIS scoping sessions in May 2005 in Maryland and Oregon. The fifth notice,5 published on October 12, 2005, requested information from the public on glyphosate use and weed management in nonagricultural lands. The sixth notice 6 published on January 8, 2016, advised the public of receipt of the current petition (15-300-01p) and solicited comment from the public, including comments related to the environmental impacts associated with the potential deregulation. APHIS received 168 comments during the 60-day comment period from a variety of stakeholders. These comments can be viewed on Regulations.gov (see ADDRESSES above). In total, more than 1,000 comments were submitted to APHIS during the public comment periods and at the public meetings.

    1 Docket No. 03-101-1 published on January 5, 2004, Vol. 69 No. 2; http://www.aphis.usda.gov/brs/fedregister/BRS_20040105a.pdf.

    2 Docket No. 03-101-2 published on September 24, 2004, Vol. 69 No. 185; http://www.aphis.usda.gov/brs/fedregister/BRS_20040924a.pdf.

    3 Docket No. 03-101-3 published on November 18, 2004, Vol. 69 No. 222; http://www.aphis.usda.gov/brs/fedregister/BRS_20041118a.pdf.

    4 Docket No. 03-101-4 published on April 11, 2005, Vol. 70 No. 68; http://www.aphis.usda.gov/brs/fedregister/BRS_20050411a.pdf.

    5 Docket No. 03-101-5 published on October 12, 2005, Vol. 70 No. 196 http://www.aphis.usda.gov/brs/fedregister/BRS_20051012a.pdf.

    6 Docket No. APHIS-2015-0096 published on January 8, 2016, Vol. 81, No. 5 https://www.regulations.gov/docket?D=APHIS-2015-0096.

    Creeping bentgrass is a perennial outcrossing species, thus major issues raised by commenters focused on plant biology and agronomic consequences of it outcrossing to weedy species that may impact agriculture and/or natural ecosystems. Issues raised specifically included the distribution of seed and pollen from creeping bentgrass, hybridization with native or naturalized species, the need for additional chemicals to control glyphosate-resistant grass species that may develop due to hybridization with creeping bentgrass, increased weediness, the ability of creeping bentgrass to establish without cultivation, potential impacts on agricultural irrigation canals, and the development of herbicide-resistant weeds.

    APHIS published a preliminary risk assessment 7 as part of its evaluation of the petition request under 7 CFR part 340 and also a white paper 8 to support the preliminary risk assessment, providing a summary of the biology and ecology of creeping bentgrass. These documents were published in 2005 and 2006, respectively. The preliminary risk assessment concluded that there is a possibility that ASR368 or hybrids of ASR368 could become established in various urban or rural and natural areas. At the time the preliminary risk assessment was written, there were at least 13 naturalized or native species with which creeping bentgrass could hybridize in the United States. The white paper presented biological and ecological information on creeping bentgrass, including its distribution in the United States and Canada, and the ability for it to form hybrids by natural interspecific crosses or potentially do so. APHIS will further investigate in the EIS whether or not there are any additional species that hybridize with A. stolonifera and associated environmental impacts. APHIS will review the 2005 preliminary risk assessment, updating it to reflect changes in turfgrass science and the current document standards of APHIS.

    7http://www.aphis.usda.gov/brs/aphisdocs/03_10401p_ra.pdf.

    8http://www.aphis.usda.gov/peer_review/downloads/cbg-wpFinal.pdf.

    To fulfill its section 7 requirements under the Endangered Species Act, APHIS entered into consultation with the U.S. Fish and Wildlife Services (USFWS) on the first petition (03-104-01p). Subsequent to the withdrawal of the petition in September 2015, APHIS notified the USFWS that it was terminating the consultation on the petition. Information provided during the comment period on this notice of intent (NOI) will be used to update APHIS' assessment of the effects on threatened and endangered species and critical habitat (collectively referred to as listed resources) and, as appropriate and required by statute, will be shared with the USFWS as part of APHIS' commitment to protect listed resources. If APHIS enters into formal consultation, the USFWS will make a determination about whether nonregulated status of ASR368 will jeopardize the continued existence of federally listed plant and animal species.

    Under NEPA, Federal agencies must examine the potential environmental impacts of proposed major Federal actions significantly affecting the quality of the human environment before taking that action. In accordance with NEPA, the regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), USDA regulations implementing NEPA (7 CFR part 1b), and APHIS' NEPA Implementing Procedures (7 CFR part 372) require that for each submitted petition, APHIS consider the potential environmental impacts of a request for nonregulated status either by preparing an environmental assessment (EA) or an EIS. APHIS has decided to prepare an EIS to better understand the degree of uncertainty for environmental impacts associated with the deregulation of ASR368. This uncertainty is primarily related to four issues that will be studied in the EIS: (1) Potential for hybridization and introgression, (2) management of volunteer ASR368, (3) potential effects on weed management practices, and (4) potential inter-related trade and economic impacts. The EIS will examine the broad and cumulative environmental impacts of the requested deregulation of ASR368, including potential impacts of the proposed action on the human environment and alternative courses of action.

    Alternatives

    The Federal action being considered is whether to approve the petition for nonregulated status of ASR368. This notice identifies reasonable alternatives and potential issues that may be studied in the EIS. We are requesting public input and comment on the range of alternatives, and on the environmental impacts and issues stated in this NOI as well as suggestions for additional alternatives for consideration and new impacts or issues to be evaluated in the EIS for the petition.

    The EIS will consider a range of reasonable alternatives. APHIS is currently considering two alternatives: (1) Take no action, i.e., APHIS would not change the regulatory status of the glyphosate-resistant creeping bentgrass event ASR368 and such plants would continue to be regulated articles, or (2) approve the petition for determination of nonregulated status of ASR368.

    Environmental Issues for Consideration

    We have identified the following potential environmental issues for consideration in the EIS: Impacts on managed natural and non-agricultural lands; on agricultural production systems; on the physical environment; on biological resources; on human health; on socioeconomic issues; on federally listed threatened or endangered species; and on cultural or historic resources. In addition to providing input and comment on these issues, we are also requesting that the public provide information on the following questions during the comment period:

    Potential for Hybridization and Introgression

    • What are the weed species in potential affected environments with which ASR368 may hybridize and introgress? What evidence is there that this would or could occur?

    • If introgression was to occur, would the inability to identify introgression of ASR368 lead to stand failures or increasing costs for production of grass seed crops when compared to non-genetically engineered (non-GE) creeping bentgrass? What evidence is there that would support stand failure or increased costs.

    Management of Volunteer ASR368

    • Compared to non-GE creeping bentgrass and other grasses, would deregulation of ASR368 result in its establishment and persistence in situations where it is unwanted, unintended, or unexpected (e.g., agricultural irrigation canals, habitat restoration, riparian areas, wetlands, or grasslands)?

    • When compared to non-GE creeping bentgrass, could the spread of ASR368 or its relatives to areas where it is unwanted, unintended, or unexpected potentially result in adverse effects on native species or habitats, including threatened and endangered species and their habitats? What supporting information is available to conclude an adverse effect?

    Potential Effects on Weed Management Practices

    • Would the presence of volunteer ASR368 increase the costs and complexity of weed control for growers of non-GE creeping bentgrass and other crops? What evidence is there to support this conclusion?

    • What potential changes of agronomic practices may occur as a result of the presence of ASR368 agricultural crops, including crop rotation practices, herbicide use, and tillage?

    Potential Trade and Economic Impacts

    • What potential impacts on GE-free grass seed exports could result from the presence of ASR368?

    • What potential impacts on conventional and organic crops could result from the presence of ARS368?

    Comments that identify other issues or alternatives that should be considered for examination in the EIS would be especially helpful. All comments received during the scoping period will be carefully considered in developing the final scope of the EIS. Upon completion of the draft EIS, a notice announcing its availability and an opportunity to comment on it will be published in the Federal Register.

    Authority:

    7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 27th day of July 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-18421 Filed 8-2-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2016-0046] Secretary's Advisory Committee on Animal Health; Intent To Renew AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice of intent.

    SUMMARY:

    We are giving notice that the Secretary of Agriculture intends to renew the charter for the Secretary's Advisory Committee on Animal Health for a 2-year period. The Secretary has determined that the Committee is necessary and in the public interest.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Diane L. Sutton, Designated Federal Officer, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737; (301) 851-3509.

    SUPPLEMENTARY INFORMATION:

    Pursuant to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.), notice is hereby given that the Secretary of Agriculture intends to renew the Secretary's Advisory Committee on Animal Health (the Committee) for 2 years. The term for the renewed charter will extend from August 8, 2016, to August 7, 2018.

    The Committee advises the Secretary on strategies, policies, and programs to prevent, control, or eradicate animal diseases. The Committee considers agricultural initiatives of national scope and significance and advises on matters of public health, conservation of national resources, stability of livestock economies, livestock disease management and traceability strategies, prioritizing animal health imperatives, and other related aspects of agriculture. The Committee Chairperson and Vice Chairperson are elected by the Committee from among its members.

    Done in Washington, DC, this 27th day of July 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-18341 Filed 8-2-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2012-0103] Privacy Act Systems of Records; Veterinary Services—Records of Accredited Veterinarians AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    The Animal and Plant Health Inspection Service proposed to alter an existing system of records in its inventory of record systems subject to the provisions of the Privacy Act of 1974, as amended. The system of records is Veterinary Services—Records of Accredited Veterinarians, USDA-APHIS-2. The system, as proposed, has been adopted; however, we received one comment, which is addressed in this notice.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Todd Behre, Program Coordinator, National Veterinary Accreditation Program, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737; (518) 281-2157.

    SUPPLEMENTARY INFORMATION:

    The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish in the Federal Register notice of new or revised systems of records. A system of records is a group of any records under the control of any agency, from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual.

    On May 12, 2015, the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) published in the Federal Register (80 FR 27142-27145, APHIS-2012-0103) 1 a proposal to alter a system of records, entitled Veterinary Services—Records of Accredited Veterinarians, which maintains information pertaining to veterinarians who are or have been accredited, or who have applied for accreditation, under the authority of section 10410 of the Animal Health Protection Act (7 U.S.C. 8309).

    1 To view the notice and the comment we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2012-0103.

    Accredited veterinarians are veterinarians authorized by APHIS to perform certain services to control and prevent the spread of animal diseases within the United States and internationally. Duties may encompass a wide range of activities relating to companion animals, livestock, poultry, horses, and other animals, including issuing certificates of veterinary inspection and health certificates for animals moving interstate or internationally; participating in animal disease surveillance and testing activities (including surveillance for emerging and foreign animal diseases); diagnosing diseases in animals; developing herd or flock health plans; and performing veterinary tasks during animal disease emergencies. Veterinarians who wish to perform work for APHIS must become nationally accredited by APHIS and then authorized by APHIS to perform accredited duties in one or more specific States or territories.

    In order to ensure that a veterinarian's accreditation is in good standing and that he or she has received the appropriate level of training commensurate with his or her duties, APHIS maintains information regarding the veterinarian in the Veterinary Services—Records of Accredited Veterinarians system. APHIS maintains information about accredited veterinarians in the system in accordance with the APHIS Records Management Handbook. Data associated with accredited veterinarians (including those whose accreditation has lapsed or been revoked) will be destroyed when 45 years old. Data will also be destroyed when the accredited veterinarian is deceased. The system also contains information about veterinarians who are applicants for accredited status.

    The system contains records related to the accreditation status of veterinarians. The records include name; date of birth; business name; home and business mailing addresses, telephone numbers, and email address; type of employment; State in which licensed or legally able to practice veterinary medicine; veterinary license number; veterinary medical college graduated and date of graduation; State(s) in which the veterinarian is authorized to perform accredited duties; species of animals the veterinarian treats; primary medical discipline; date of core orientation to accreditation and State where the veterinarian completed the orientation; the veterinarian's accreditation category; date of accreditation renewal; APHIS program certifications; APHIS-approved supplemental training completed; whether business contact information may be provided to members of the public; and information pertaining to any alleged or adjudicated violations of accreditation standards, including disposition of the case. The system also assigns a national accreditation number (NAN) to each registered accredited veterinarian.

    We solicited comments on the notice for 30 days ending on June 22, 2015. We received one comment by that date from an organization that represents veterinarians. The commenter objected to the use of dates of birth in the system. The commenter stated that that the use of the date of birth was unnecessary and could present a vulnerability to personal identity security.

    We disagree with the commenter that the use of the date of birth is unnecessary. To the contrary, the date of birth is a necessary identifier. In fact, there are three main reasons for the use of the date of birth to maintain records of accredited veterinarians.

    As previously indicated, the system includes records for each accredited veterinarian, several of these, when listed together, are considered unique identifiers, such as the full name (first and last names and middle initial), date of birth, school and year of graduation, and the system-generated NAN. In some instances accredited veterinarians with the same full name also have the same year and school of graduation. In addition, some accredited veterinarians do not remember their NAN, which consists of a six-digit number that uses leading 0's. Some relay their NAN incorrectly by superimposing numbers, not using the leading 0's, etc. In these cases, the date of birth is used as the most accurate identifier.

    The date of birth is also used when we find that an accredited veterinarian has a duplicate record in the database, which means there were two separate NANs created. The date of birth is the single unique identifier used to ensure that the two records do in fact belong to the same person, in which case, we combine the records under one NAN.

    Lastly, we conduct classroom training sessions at major and local veterinary meetings. Attendance at training sessions is required for an accredited veterinarian to renew his or her accreditation, and each accredited veterinarian must sign in using his or her first name, last name, and date of birth as identifiers. We require the date of birth in this instance because it serves as a unique identifier if there should be an instance of two veterinarians signing in under the same first and last names, and as previously stated, we do not require the NAN because of problems arising when the veterinarian does not remember his or her NAN or records it incorrectly.

    As to the possible vulnerability to personal identity security, as described in the system of records notice referred to above, the system is physically secured in a locked facility with access only by authorized APHIS personnel. Data is stored and backed up using protocols established by the Fort Collins, CO, data center. Access to the records in the system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. Data available to individual users is role-based, which further limits access. Users must have USDA eAuthentication credentials and sign in using authorized logins and passwords. Employees who save spreadsheets containing data from the system are responsible for protecting the data. Files on employees' computers are also protected by encryption software and login and password requirements. On an annual basis, all users are required to undergo information security training and to sign rules of behavior. Failure to comply with rules of behavior can result in corrective actions, including written reprimands, temporary suspension from duty, reassignment, demotion, or termination, suspension of system privileges, and possible criminal prosecution.

    Based on our proposal to alter the system of records and the reasons given in this document, the system will remain as proposed.

    Done in Washington, DC, this 27th day of July 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-18357 Filed 8-2-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Notice of a Request for Extension of a Currently Approved Information Collection AGENCY:

    Foreign Agricultural Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act, this notice announces the Department's intention to request an extension for a currently approved information collection in support of the Dairy Tariff-rate Import Quota Licensing program.

    DATES:

    Comments should be submitted no later than October 3, 2016 to be assured of consideration.

    ADDRESSES:

    We invite you to submit comments as requested in this document. In your comment, include the Regulation Identifier Number (RIN) and volume, date, and page number of this issue of the Federal Register. You may submit comments by any of the following methods:

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

    Mail, hand delivery, or courier: Bettyann Gonzales, Dairy Import Specialist, Office of Trade Programs, Foreign Agricultural Service, 1400 Independence Avenue SW., Washington, DC 20250-1021, STOP 1021; or by email at [email protected]; or by telephone at (202) 720-1344.

    Comments will be available for inspection online at http://www.regulations.gov and at the mail address listed above between 8:00 a.m. and 4:30 p.m., Monday through Friday, except holidays.

    Persons with disabilities who require an alternative means for communication of information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TDD).

    FOR FURTHER INFORMATION CONTACT:

    Bettyann Gonzales, Dairy Import Specialist, STOP 1021, U.S. Department of Agriculture, Foreign Agricultural Service, 1400 Independence Avenue SW., Washington, DC 20250-1021; or by telephone (202) 720-1344; or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Dairy Tariff-rate Import Quota Licensing Program.

    OMB Number: 0551-0001.

    Expiration Date of Approval: May 31, 2017.

    Type of Request: Extension and revision of a currently approved information collection.

    Abstract: The currently approved information collection supports the Dairy Tariff-rate Import Quota regulation (the Regulation) (7 CFR 6.20-6.36) which governs the administration of the import licensing system applicable to most dairy products subject to tariff-rate quotas (TRQs). The TRQs were established in the Harmonized Tariff Schedule of the United States (HTS) as a result of the entry into force of certain provisions in the Uruguay Round Agreements Act (Pub. L. 103-465) that converted existing absolute quotas to TRQs. Imports of nearly all cheeses made from cow's milk (except soft-ripened cheese such as Brie) and certain non-cheese dairy products (including butter and dried milk) are subject to TRQs and the Regulation. Licenses are issued each quota year to eligible applicants and are valid for 12 months (January 1 through December 31). Only licensees may enter specified quantities of the subject dairy articles at the applicable in-quota tariff-rates. Importers who do not hold licenses may enter dairy articles only at the over-quota tariff-rates.

    Each quota year, all applicants must submit form FAS 923 (rev. 7-96). This form, available online, requires applicants to: (1) Certify they are an importer, manufacturer or exporter of certain dairy products; (2) certify they meet the eligibility requirements of § 6.23 of the Regulation; and (3) submit documentation required by § 6.23 and § 6.24 as proof of eligibility for import licenses. Applicants for non-historical licenses must also submit form FAS 923-A (rev. 7-96) (cheese) and/or FAS 923-B (rev. 7-96) (non-cheese dairy products). This form requires applicants to request licenses in descending order of preference for specific products and countries listed on the form.

    After licenses are issued, § 6.26 requires licensees to surrender by October 1 on form FAS 924-A, License Surrender Form, any license amount that a licensee does not intend to enter that year. These amounts are reallocated, to the extent practicable, to existing licensees for the remainder of that year based on requests submitted on form FAS 924-B, Application for Additional License Amounts. Forms 924A and 924B require the licensee to complete a table listing the surrendered amount by license number, or listing the additional amounts requested by dairy article and supplying country in descending order of preference.

    The estimated total annual burden of 436 hours in the Office of Management and Budget (OMB) inventory for the currently approved information collection will remain at 436 hours. The public reporting burden for this collection of currently approved forms FAS 923, FAS 923-A and 923-B (one form) (rev. 7-96) is estimated to average 436 hours; and FAS 924-A and FAS 924-B (one form) is 23 hours.

    Estimate of Burden: The average burden, including the time for reviewing instructions, gathering data needed, completing forms, and record keeping is estimated at .75 hour for form FAS 923, 923-A, 923-B (rev. 7-96) and .15 hour for form 924-A, 924-B.

    Respondents: Importers and manufacturers of cheese and non-cheese dairy products, and exporters of non-cheese dairy products.

    Estimated Number of Respondents: 550 for form FAS 923, 923-A, 923-B (rev. 7-96) and 150 for form 924-A, 924-B (rev. 7-96).

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden: 436 hours.

    Requests for Comments: Send comments regarding (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden 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 those who are to respond, including through the use of automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Copies of this information collection may be obtained from Connie Ehrhart, the Agency Information Collection Coordinator, at (202) 690-1578.

    All responses to this notice will be summarized and included in the request for OMB approval. All comments also will become a matter of public record.

    FAS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Electronic submission of the information collection was implemented on September 2009 in compliance with the GPEA.

    Dated: July 21, 2016. Philip C. Karsting, Administrator, Foreign Agricultural Service.
    [FR Doc. 2016-18337 Filed 8-2-16; 8:45 am] BILLING CODE 3410-10-P
    DEPARTMENT OF AGRICULTURE Forest Service Ketchikan Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: https://www.fs.usda.gov/main/pts.

    DATES:

    The meeting will be held on August 17, 2016, at 5:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line is set up for those who would like to listen in by telephone. For the conference call number, please contact the person listed under For Further Information Contact.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ketchikan Misty Fiords Ranger District. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Update members on past RAC projects, and

    2. Propose new RAC projects.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 12, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to [email protected], or via facsimile to 907-225-8738.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accomodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: July 19, 2016. Jon Hyde, Acting District Ranger.
    [FR Doc. 2016-17744 Filed 8-2-16; 8:45 am] BILLING CODE M
    DEPARTMENT OF AGRICULTURE Forest Service Beaverhead-Deerlodge National Forest; Montana; Supplemental EIS for the Beaverhead-Deerlodge National Forest Land and Resource Management Plan To Comply With District of Montana Court Order AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The Beaverhead-Deerlodge National Forest will prepare a Supplemental Environmental Impact Statement (SEIS) to the 2009 Beaverhead-Deerlodge National Forest Revised Land and Resource Management Plan (Forest Plan) environmental analysis in response to a June 14, 2016 Order from the U.S. District Court for the District of Montana. The Court directed the Forest Service to issue a supplemental EIS for the 2009 Revised Forest Plan that evaluates the potential environmental consequences of the 2002 and the 2008 MOUs. The MOUs were entered into by and between Grazing Permittees, the Bureau of Land Management, Montana Fish, Wildlife and Parks and the Beaverhead-Deerlodge National Forest as part of Montana Fish, Wildlife and Parks' proposal to reintroduce bighorn sheep into the Greenhorn Mountain Range. The 2002 MOU was replaced by the 2008 MOU.

    DATES:

    Under 40 CFR 1502.9(c)(4), there is no formal scoping period for this proposed action. The Draft SEIS is expected to be published in October, 2016, which will then begin, in accordance with 36 CFR 219.16(a)(2), a 90-day public comment period on the Draft SEIS.

    FOR FURTHER INFORMATION CONTACT:

    Jan Bowey, Beaverhead-Deerlodge National Forest, 420 Barrett Street, Dillon, MT 59725 (406) 683-3900.

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    Dated: July 27, 2016. Melany Glossa, Forest Supervisor.
    [FR Doc. 2016-18366 Filed 8-2-16; 8:45 am] BILLING CODE 3410-11-P
    DEPARTMENT OF AGRICULTURE Forest Service Forest Resource Coordinating Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Forest Resource Coordinating Committee (Committee) will meet via teleconference. The Committee is established consistent with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C. App. II), and the Food, Conservation, and Energy Act of 2008 (the Act) (Pub. L. 110-246). Committee information can be found at the following Web site at http://www.fs.fed.us/spf/coop/frcc/.

    DATES:

    The teleconference will be held on September 28, 2016, from 12:00 p.m. to 1:30 p.m., Eastern Daylight Time (EDT).

    All meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held via teleconference. For anyone who would like to attend the teleconference, please visit the Web site listed in the SUMMARY section or contact Scott Stewart at [email protected] for further details.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments placed on the Committee's Web site listed above.

    FOR FURTHER INFORMATION CONTACT:

    Scott Stewart, Designated Federal Officer, Cooperative Forestry staff, 202-205-1618.

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Give recap following meeting with Undersecretary Robert Bonnie,

    2. Plan agenda/logistics for November in-person meeting, and

    3. Deliver educational presentation.

    The teleconference is open to the public. However, the public is strongly encouraged to RSVP prior to the teleconference to ensure all related documents are shared with public meeting participants. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing 10 days before the planned meeting to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Written comments and time requests for oral comments must be sent to Scott Stewart, 1400 Independence Avenue SW., Mailstop 1123, Washington, DC 20250; or by email to [email protected]. A summary of the meeting will be posted on the Web site listed above within 21 days after the meeting.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: July 29, 2016. James E. Hubbard, Deputy Chief, State and Private Forestry.
    [FR Doc. 2016-18384 Filed 8-2-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Lower Joseph Creek Restoration Project, Wallowa-Whitman National Forest Land and Resource Management Plan Amendment for Research Natural Area Establishment AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of objection filing period.

    SUMMARY:

    James Peña, the Regional Forester for the Pacific Northwest Region, has prepared a Final Environmental Impact Statement (FEIS) and draft Record of Decision (ROD) for the establishment of two Research Natural Areas (RNA) as part of the Lower Joseph Creek Restoration Project. The draft ROD authorizes establishment of both the Horse Pasture Ridge and Haystack Rock RNAs.

    The FEIS and draft ROD are available on the forest's Web site at http://www.fs.usda.gov/project/?project=43379. A hardcopy of the document(s) and/or further information is available by contacting the person listed under the FOR FURTHER INFORMATION CONTACT section below. The draft ROD is subject to objection under 36 CFR part 219, subpart B. A written notice of objection, including any attachments, must be submitted (regular mail, express delivery, messenger service, fax, email, or hand delivery) within 60 days of the publication date of the notice in the newspaper of record, the Oregonian. The newspaper notice is the exclusive means for calculating the time to file an objection (36 CFR 219.56(b)(3)). An electronic scan of this notice was posted on the Web site noted above. Those wishing to object to the draft ROD should not rely upon dates or timeframe information provided by any other source.

    Any objection must be submitted to Glen Casamassa, Associate Deputy Chief, who is the Objection Reviewing Officer, at one of the addresses listed in the ADDRESSES section below.

    The objection process provides an opportunity for members of the public who have participated in the planning process for the forest plan amendment to have any unresolved concerns reviewed by the Forest Service prior to a final decision by the Responsible Official. Under 36 CFR 219.53(a), objections will be accepted only from those individuals or organizations who have previously submitted substantive formal comments related to this amendment of the Wallowa-Whitman National Forest Plan during previous opportunities for public comment provided. Objections must be based on previously submitted substantive comments attributed to the objector, unless the objection concerns an issue that arose after the opportunities for public comment (36 CFR 219.53(a)). In addition, objections must meet the content requirements of 36 CFR 219.54(c), which can be found in SUPPLEMENTARY INFORMATION.

    All objections are open to public inspection and will be posted to the Forest Service Web site (http://www.fs.usda.gov/project/?project=43379). A notice of objections received will be published in the newspaper of record, the Oregonian, within 10 days after the close of the objection filing period.

    DATES:

    The objection filing period began upon publication of the notice in the newspaper of record (publication occurred on July 15, 2016 in the Oregonian) and ends 60 days thereafter.

    ADDRESSES:

    Objections must be submitted to one of the addresses below:

    1. Postal Delivery: USDA Forest Service Attn: Objection Reviewing Officer, 1400 Independence Ave. SW., EMC-LEAP, Mailstop 1104, Washington, DC 20250.

    2. Express, Messenger, or Hand Delivery: USDA Forest Service, Attn: Objection Reviewing Officer, 210 14th St. SW., EMC-LEAP, Mailstop 1104, Washington, DC 20250. The main phone line for carrier deliveries is 202-719-8488.

    3. Electronically Filed: Email; [email protected]; Please put Objection and Lower Joseph Creek Restoration Project, establishment of Haystack Rock and Horse Pasture Ridge Research Natural Areas in the subject line. Fax: (202) 649-1172

    FOR FURTHER INFORMATION CONTACT:

    Darcy Weseman, Plan Amendment Project Manager, 72510 Coyote Rd. Pendleton, OR 97801, (541) 278-3755, or [email protected]

    SUPPLEMENTARY INFORMATION:

    The office business hours for those submitting hand-delivered objections are 8:00 a.m. to 5:00 p.m. (Eastern Standard Time), Monday through Friday, except Federal holidays. Electronic objections must be submitted in a commonly used format such as an email message, plain text (.txt), rich text format (.rtf), or Microsoft Word (.doc or .docx). For electronically mailed objections, the sender should normally receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment of the receipt of the objection, it is the sender's responsibility to ensure timely receipt by other means. The regulations prohibit extending the length of the objection filing period.

    Any objection must include the following (30 CFR 219.54(c)):

    1. The objector's name and address, telephone number or email address if available. Include the identification of the lead objector, when multiple names are listed on an objection.

    2. Signature or other verification of authorship upon request (a scanned signature is allowed for electronic mail);

    3. The title of the plan amendment, and the name and title of the Responsible Official;

    4. A description of the issues and/or parts of the plan amendment to which the objection applies;

    5. A brief statement explaining the objection and suggesting how the draft plan amendment decision may be improved. If the objector believes the plan amendment is inconsistent with law, regulation, or policy, the reasons should be included;

    6. A statement that shows the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment.

    Attach documents referenced in the objection except as noted at 36 CFR 219.54(b). The objector is responsible for ensuring the timely filing of written objections. Timeliness will be determined as indicated in 36 CFR 219.56(c).

    The Reviewing Officer will provide written acknowledgement of receipt of the objection, if requested by the objector.

    Dated: July 20, 2016. James Peña, Regional Forester, Pacific Northwest Region.
    [FR Doc. 2016-18519 Filed 8-2-16; 8:45 am] BILLING CODE 3411-15-M
    DEPARTMENT OF AGRICULTURE Forest Service White Pine-Nye Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The White Pine-Nye Resource Advisory Committee (RAC) will meet in Eureka, Nevada. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. RAC information can be found at the following Web site: https://fsplaces.fs.fed.us/fsfiles/unit/wo/secure_rural_schools.ns.

    DATES:

    The meeting will be held on August 23, 2016, at 10:00 a.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Eureka County Annex, Conference Room, 701 South Main, Eureka, Nevada.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Tonopah Ranger District Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Linda Bernardi, RAC Coordinator, by phone at 775-482-6286 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to review and and make recommendations with regards to proposed projects.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 15, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Linda Bernardi, RAC Coordinator, Tonopah Ranger District, P.O. Box 3940, Tonopah, Nevada 89049; by email to [email protected], or via facsimile to 775-482-3053.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT.

    All reasonable accommodation requests are managed on a case by case basis.

    Dated: July 21, 2016. Jose Noriega, District Ranger.
    [FR Doc. 2016-18344 Filed 8-2-16; 8:45 am] BILLING CODE 3411-15-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Connecticut Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that Maine Advisory Committee orientation and planning meeting of the Maine Advisory Committee to the Commission will convene at 1:30 p.m. (EDT) on Tuesday, August 16, 2016, at Lewiston City Hall, 27 Pine St., Lewiston, ME 04240. The purpose of the orientation meeting is to inform the newly appointed Committee members about the rules of operation of federal advisory committees and to select additional officers, as determined by the Committee. The purpose of the planning meeting is to discuss potential topics that the Committee may wish to study.

    Persons who plan to attend the meeting and who require other accommodations, please contact Evelyn Bohor at [email protected] at the Rocky Mountain Regional Office at least ten (10) working days before the scheduled date of the meeting.

    Members of the public are invited to submit written comments; the comments must be received in the regional office by Friday, September 16, 2016. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    The activities of this advisory committee, including 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=239. Records generated from this meeting may also be inspected and reproduced at the Eastern 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 Eastern Regional Office at the above phone number, email or street address.

    AGENDA
    Orientation and Administrative Matters Barbara de La Viez, Deputy Director, Eastern Regional Office and Designated Federal Official Discussion of Potential Civil Rights Topics Diane Khiel, Chair Discussion of Potential Topics of Study ME State Advisory Committee DATES:

    Tuesday, August 16, 2016, at 1:30 p.m. (EDT).

    ADDRESSES:

    27 Pine St., Lewiston, ME 04240

    FOR FURTHER INFORMATION CONTACT:

    Ivy L. Davis at [email protected], or 202-376-7533.

    Dated: July 29, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-18389 Filed 8-2-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: Bureau of Economic Analysis (BEA), Commerce.

    Title: Quarterly Survey of U.S. Direct Investment Abroad—Transactions of U.S. Reporter with Foreign Affiliate.

    OMB Control Number: 0608-0004.

    Form Number: BE-577.

    Type of Request: Regular submission.

    Number of Respondents: 2,090 U.S. parents filing for 16,720 foreign affiliates per quarter, 66,880 annually.

    Average Hours per Response: 1 hour is the average, but may vary considerably among respondents because of differences in company structure and complexity.

    Estimated Total Annual Burden Hours: 66,880.

    Needs and Uses: The Quarterly Survey of U.S. Direct Investment Abroad—Transactions of U.S. Reporter with Foreign Affiliate (Form BE-577)—obtains quarterly data on transactions and positions between U.S.-owned foreign business enterprises and their U.S. parents. The survey is a sample survey that covers all foreign affiliates above a size-exemption level. The sample data are used to derive universe estimates in nonbenchmark years from similar data reported in the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, which is conducted every five years. The data are used in the preparation of the U.S. international transactions accounts, the input-output accounts, the national income and product accounts, and the international investment position of the United States. The data are needed to measure the size and economic significance of direct investment abroad, measure changes in such investment, and assess its impact on the U.S. and foreign economies.

    The data from the survey are primarily intended as general purpose statistics. BEA's publications make the data available to answer any number of research and policy questions related to U.S. direct investment abroad.

    Affected Public: Businesses or other for-profit organizations.

    Frequency: Quarterly.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA [email protected] or fax to (202) 395-5806.

    Dated: July 28, 2016. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2016-18309 Filed 8-2-16; 8:45 am] BILLING CODE 3510-06-P
    DEPARTMENT OF COMMERCE International Trade Administration Civil Nuclear Trade Advisory Committee: Notice of an Opportunity To Apply For Membership AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of an opportunity to apply for membership on the Civil Nuclear Trade Advisory Committee.

    SUMMARY:

    The Department of Commerce (the Department) is seeking applications for membership on the Civil Nuclear Trade Advisory Committee (CINTAC or “Committee”). The purpose of the CINTAC is to provide advice to the Secretary of Commerce regarding the development and administration of programs to expand U.S. exports of civil nuclear goods and services in accordance with applicable U.S. laws and regulations, which will be used by the Department in its role as a member of the Civil Nuclear Trade Working Group of the Trade Promotion Coordinating Committee and of the TeamUSA interagency group to promote U.S. civil nuclear trade.

    DATES:

    All applications for immediate consideration for appointment must be received by the Office of Energy & Environmental Industries by 5:00 p.m. Eastern Daylight Time (EDT) on September 2, 2016. After that date, ITA will continue to accept applications under this notice for a period of up to two years from the deadline to fill any vacancies that may arise.

    ADDRESSES:

    Please submit applications in pdf or MS Word format via email to [email protected], or by mail to Jonathan Chesebro, Office of Energy & Environmental Industries, Room 4053, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Jonathan Chesebro, Office of Energy and Environmental Industries, Room 4053, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; phone 202-482-1297 or email [email protected].

    SUPPLEMENTARY INFORMATION: I. Background and Authority

    The CINTAC was established on September 17, 2008, pursuant to the Department of Commerce authority under 15 U.S.C. 1512 and the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. The CINTAC functions solely as an advisory committee in accordance with the provisions of FACA. As noted in the SUMMARY, CINTAC provides advice to the Secretary of Commerce regarding the development and administration of programs to expand U.S. exports of civil nuclear goods and services which will be used by the Department in its role as a member of the Civil Nuclear Trade Working Group of the Trade Promotion Coordinating Committee and as a member of the TeamUSA interagency group to promote U.S. civil nuclear trade. In particular, the Committee advises on matters including, but not limited to:

    (1) Matters concerning trade policy development and negotiations relating to U.S. civil nuclear exports;

    (2) The effect of U.S. Government policies, regulations, programs, and foreign government policies and practices on the export of U.S. civil nuclear goods and services;

    (3) The competitiveness of U.S. industry and its ability to compete for civil nuclear products and services opportunities in international markets, including specific problems in exporting, and provide specific recommendations regarding U.S. Government and public/private actions to assist civil nuclear companies in expanding their exports;

    (4) The identification of priority civil nuclear products and services markets with the potential for high immediate returns for U.S. exports, as well as emerging markets with a longer-term potential for U.S. exports;

    (5) Strategies to increase private sector awareness and effective use of U.S. Government export promotion programs, and recommendations on how U.S. Government programs may be more efficiently designed and coordinated;

    (6) The development of complementary industry and trade association export promotion programs, including ways for greater and more effective coordination of U.S. Government efforts with private sector organizations' civil nuclear industry export promotion efforts; and

    (7) The development of U.S. Government programs to encourage producers of civil nuclear products and services to enter new foreign markets, in connection with which CINTAC may advise on how to gather, disseminate, and promote awareness of information on civil nuclear exports and related trade issues.

    II. Membership

    CINTAC shall consist of approximately 40 members appointed by the Secretary, in accordance with applicable Department of Commerce guidance and based on their ability to carry out the objectives of the Committee. Members shall represent U.S. entities involved in the export of civil nuclear products and services and reflect the diversity of this sector, including in terms of entities' size and geographic location. The Committee shall also represent the diversity of company or organizational roles in the development of civil nuclear energy projects, including, for example, U.S. civil nuclear manufacturing and services companies, U.S. utilities, U.S. trade associations, and other U.S. organizations in the U.S. civil nuclear sector. The Secretary shall appoint to the Committee at least one individual representing each of the following:

    a. Civil nuclear manufacturing and services companies;

    b. small businesses;

    c. utilities;

    d. trade associations in the civil nuclear sector;

    e. research institutions and universities; and

    f. private sector organizations involved in strengthening the export competitiveness of U.S. civil nuclear products and services.

    Members shall serve in a representative capacity, expressing the views and interests of a U.S. entity, as well as its particular subsector; they are, therefore, not Special Government Employees. Each member of the Committee must be a U.S. citizen and must not be registered as a foreign agent under the Foreign Agents Registration Act. No member may represent a U.S. entity that is majority owned or controlled by a foreign government entity (or foreign government entities). The Secretary of Commerce invites applications for the CINTAC, consistent with the above membership requirements. To be considered for membership, submit the following information (2 pages maximum) by 5:00 p.m. EDT on August 3, 2016 to the email or mailing address listed in the ADRRESSES section, If you are interested in nominating someone to become a member of the CINTAC, please provide the following information (2 pages maximum):

    (1) Name;

    (2) Title;

    (3) Work phone, fax, and, email address;

    (4) Name of entity to be represented and address including Web site address;

    (5) Short biography of nominee including credentials;

    (6) Brief description of the entity and its business activities, size (number of employees and annual sales), and export markets served; and,

    (7) An affirmative statement that the applicant and entity to be represented meet all eligibility criteria, specifically addressing that the applicant:

    (a) Is a U.S. citizen; and

    (b) Is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

    Please do not send organization brochures or any other information.

    All applications should be submitted in pdf or MS Word format via email to [email protected], or via mail to Jonathan Chesebro, Office of Energy & Environmental Industries, Room 4053, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    Adam O'Malley, Director, Office of Energy and Environmental Industries.
    [FR Doc. 2016-18331 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration Corporation for Travel Promotion (dba Brand USA) AGENCY:

    International Trade Administration, U.S. Department of Commerce

    ACTION:

    Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion.

    SUMMARY:

    The Department of Commerce is currently seeking applications from travel and tourism leaders from specific industries for membership on the Board of Directors (Board) of the Corporation for Travel Promotion (dba Brand USA). The purpose of the Board is to guide the Corporation for Travel Promotion on matters relating to the promotion of the United States as a travel destination and communication of travel facilitation issues, among other tasks.

    DATES:

    All applications must be received by the National Travel and Tourism Office by close of business on September 23, 2016.

    ADDRESSES:

    Electronic applications may be sent to: [email protected] Written applications can be submitted to Isabel Hill, Director, National Travel and Tourism Office, U.S. Department of Commerce, Mail Stop 10007, 1401 Constitution Avenue NW., Washington, DC 20230. Telephone: 202.482.0140. Email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Julie Heizer, Deputy Director, Industry Relations, National Travel and Tourism Office, Mail Stop 10003, 1401 Constitution Avenue NW., Washington, DC 20230. Telephone: 202.482.4904. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Travel Promotion Act of 2009 (TPA) was signed into law by President Obama on March 4, 2010, and was amended in July 2010 and December 2014. The TPA established the Corporation for Travel Promotion (the Corporation), as a non-profit corporation charged with the development and execution of a plan to (A) provide useful information to those interested in traveling to the United States; (B) identify and address perceptions regarding U.S. entry policies; (C) maximize economic and diplomatic benefits of travel to the United States through the use of various promotional tools; (D) ensure that international travel benefits all States and the District of Columbia, and (E) identify opportunities to promote tourism to rural and urban areas equally, including areas not traditionally visited by international travelers.

    The Corporation (doing business as Brand USA) is governed by a Board of Directors, consisting of 11 members with knowledge of international travel promotion or marketing, broadly representing various regions of the United States. The TPA directs the Secretary of Commerce (after consultation with the Secretary of Homeland Security and the Secretary of State) to appoint the Board of Directors for the Corporation.

    At this time, the Department will be selecting four individuals with the appropriate expertise and experience from specific sectors of the travel and tourism industry to serve on the Board as follows:

    (A) 1 shall have appropriate expertise and experience in the attractions or recreation sector;

    (B) 1 shall have appropriate expertise and experience in immigration policy/law;

    (C) 1 shall have appropriate expertise and experience in land or sea passenger transportation; and

    (C) 1 shall have appropriate expertise and experience as an official in the passenger air transportation sector.

    To be eligible for Board membership, individuals must have international travel and tourism marketing experience, be a current or former chief executive officer, chief financial officer, or chief marketing officer or have held an equivalent management position. Additional consideration will be given to individuals who have experience working in U.S. multinational entities with marketing budgets, and/or who are audit committee financial experts as defined by the Securities and Exchange Commission (in accordance with section 407 of Pub. L. 107-204 [15 U.S.C. 7265]). Individuals must be U.S. citizens, and in addition, cannot be federally registered lobbyists or registered as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

    Those selected for the Board must be able to meet the time and effort commitments of the Board.

    Board members serve at the discretion of the Secretary of Commerce (who may remove any member of the Board for good cause). The terms of office of each member of the Board appointed by the Secretary shall be three (3) years. Board members can serve a maximum of two consecutive full three-year terms. Board members are not considered Federal government employees by virtue of their service as a member of the Board and will receive no compensation from the Federal government for their participation in Board activities. Members participating in Board meetings and events may be paid actual travel expenses and per diem when away from their usual places of residence by the Corporation.

    Individuals who want to be considered for appointment to the Board should submit:

    1. Name, title, and personal resume of the individual requesting consideration, including address, email address and phone number; and

    2. A brief statement of why the person should be considered for appointment to the Board. This statement should also address the individual's relevant international travel and tourism marketing experience and indicate clearly the sector or sectors enumerated above in which the individual has the requisite expertise and experience. Individuals who have the requisite expertise and experience in more than one sector can be appointed for only one of those sectors. Appointments of members to the Board will be made by the Secretary of Commerce.

    3. An affirmative statement that the applicant is a U.S. citizen and further, is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

    Dated: August 1, 2016. Julie P. Heizer Deputy Director, National Travel and Tourism Office.
    [FR Doc. 2016-18531 Filed 8-1-16; 4:15 pm] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-801] Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Correction of the Antidumping Duty New Shipper Review Federal Register Notice AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker or Kenneth Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-0413 or 202-482-6491, respectively.

    SUPPLEMENTARY INFORMATION:

    On July 7, 2016, the Department of Commerce (“the Department”) published in the Federal Register the 2014-2015 Final Results of the New Shipper Review on Fish Fillets from Vietnam. 1 The 2014-2015 Final Results of the New Shipper Review on Fish Fillets from Vietnam contained two errors.2 Specifically, the period of review (“POR”) is incorrectly stated as August 1, 2014, to January 1, 2015. The correct POR is August 1, 2014, to January 31, 2015. In addition, we note the Vietnam-wide rate is $2.39/kilogram, not $2.35/kilogram. As a result, the 2014-2015 Final Results of the New Shipper Review on Fish Fillets from Vietnam are being corrected.

    1See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of Antidumping Duty New Shipper Review; 2014-2015, 81 FR 44272 (July 7, 2016) (“2014-2015 Final Results of the New Shipper Review on Fish Fillets from Vietnam”).

    2Id.

    This correction to the Federal Register notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended.

    Dated July 28, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2016-18415 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-601] Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Department) received a request from Zhejiang Jingli Bearing Technology Co. Ltd. (Zhejiang Jingli) for a new shipper review (NSR) of the antidumping duty order on tapered roller bearings and parts thereof, finished and unfinished (TRBs), from the People's Republic of China (PRC). We have determined that this request meets the statutory and regulatory requirements for initiation. The period of review (POR) for this NSR is June 1, 2015, through May 31, 2016.

    DATES:

    Effective August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Manuel Rey or Blaine Wiltse, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5518 or (202) 482-6345, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On June 15, 1987, the Department published in the Federal Register the antidumping duty order on TRBs from the PRC.1 In June 2016, the Department received a properly-filed request for an NSR from Zhejiang Jingli 2 during the anniversary month of the antidumping duty order, pursuant to section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (the Act).

    1See Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China, 52 FR 22667 (June 15, 1987).

    2See Zhejiang Jingli's June 28, 2016, submission (Zhejiang Jingli NSR Request).

    In its request, Zhejiang Jingli certified that it is a producer and exporter of TRBs from the PRC. Pursuant to section 751(a)(2)(B)(i)(I) of the Act and 19 CFR 351.214(b)(2)(i), Zhejiang Jingli also certified that it did not export TRBs to the United States during the period of investigation (POI).3 In addition, pursuant to section 751(a)(2)(B)(i)(II) of the Act and 19 CFR 351.214(b)(2)(iii)(A), Zhejiang Jingli certified that, since the initiation of the investigation, it has never been affiliated with any PRC exporter or producer who exported TRBs to the United States during the POI, including those respondents not individually examined during the investigation.4 As required by 19 CFR 351.214(b)(2)(iii)(B), Zhejiang Jingli certified that its export activities were not controlled by the government of the PRC.5 Finally, because Zhejiang Jingli purchased in-scope parts from unaffiliated suppliers, it also provided these same certifications from its suppliers, as required by 19 CFR 351.214(b)(2)(ii)(B), (b)(2)(iii)(A), and (b)(2)(iii)(B).6

    3Id., at Exhibit 1.

    4Id.

    5Id.

    6See Zhejiang Jingli's July 25, 2016, submission at Attachment.

    In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Zhejiang Jingli submitted documentation establishing the following: (1) The date on which it first sold TRBs for export to the United States and the date on which the TRBs were first entered; (2) the volume of its first shipment; and (3) the date of its first sale to an unaffiliated customer in the United States.7

    7Id., at Exhibit 2.

    The Department conducted a U.S. Customs and Border Protection (CBP) database query to confirm that Zhejiang Jingli's shipment of subject merchandise entered the United States for consumption and that liquidation of this entry had been properly suspended for antidumping duties. The Department also examined whether the CBP data confirmed that this entry was made during the POR. The information the Department examined was consistent with that provided by Zhejiang Jingli.

    Period of Review

    In accordance with 19 CFR 351.214(g)(1)(i)(A), the POR for an NSR initiated in the month immediately following the anniversary month will be the twelve-month period immediately preceding the anniversary month. Therefore, the POR is June 1, 2015, through May 31, 2016. Based on the information provided by Zhejiang Jingli, the subject merchandise upon which Zhejiang Jingli's NSR request is based entered the United States during this twelve-month POR.

    Initiation of New Shipper Review

    Pursuant to section 751(a)(2)(B) of the Act, 19 CFR 351.214(b), 19 CFR 351.214(d)(1), and after reviewing the information on the record, the Department finds that the request from Zhejiang Jingli meets the threshold requirements for the initiation of an NSR for shipments of TRBs from the PRC by Zhejiang Jingli.8 If the information supplied by Zhejiang Jingli cannot be verified, or is otherwise found to be incorrect or insufficient during the course of this proceeding, the Department may rescind the NSR or apply facts available pursuant to section 776 of the Act, depending on the facts on the record.

    8See Memorandum to the File from Manuel Rey, International Trade Compliance Analyst, Office II, AD/CVD Operations, entitled “Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Initiation of New Shipper Review of Zhejiang Jingli,” dated concurrently with this notice.

    On February 24, 2016, the President signed into law the “Trade Facilitation and Trade Enforcement Act of 2015,” H.R. 644, which made several amendments to section 751(a)(2)(B) of the Act. We will conduct this NSR in accordance with section 751(a)(2)(B) of the Act, as amended by the Trade Facilitation and Trade Enforcement Act of 2015.9

    9 Notably, the Trade Facilitation and Trade Enforcement Act of 2015 removed from section 751(a)(2)(B) of the Act the provision directing the Department to instruct CBP to allow an importer the option of posting a bond or security in lieu of a cash deposit during the pendency of an NSR.

    The Department intends to issue the preliminary results of this NSR no later than 180 days from the date of initiation, and the final results within 90 days after the date on which the preliminary results are issued, pursuant to section 751(a)(2)(B)(iii) of the Act.

    It is the Department's usual practice, in cases involving non-market economy countries, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of de jure and de facto absence of government control over the company's export activities. Accordingly, we will issue a questionnaire to Zhejiang Jingli which will include a section requesting information concerning its eligibility for a separate rate. The review will proceed if the response provides sufficient indication that Zhejiang Jingli is not subject to either de jure or de facto government control with respect to its exports of subject merchandise.

    To assist in its analysis of the bona fides of Zhejiang Jingli's sale pursuant to section 751(a)(2)(B)(iv) of the Act, upon initiation of this NSR, the Department will require Zhejiang Jingli to submit on an ongoing basis complete transaction information concerning any sales of subject merchandise to the United States that were made subsequent to the POR.

    Interested parties requiring access to proprietary information in this NSR should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306. This initiation and notice are published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).

    Dated: July 28, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2016-18402 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-533-825] Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review; 2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on polyethylene terephthalate film, sheet and strip (PET film) from India for the period of review (POR) January 1, 2014, through December 31, 2014. We preliminarily determine that Jindal Poly Films Limited of India (Jindal) and SRF Limited (SRF) received countervailable subsidies during the POR. See the “Preliminary Results of Review” section, below. Interested parties are invited to comment on these preliminary results.

    DATES:

    Effective August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elfi Blum, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0197.

    Partial Rescission of Administrative Review

    The Department initiated a review of nine companies in this segment of the proceeding.1 In response to timely filed withdrawal requests, we are rescinding this administrative review with respect to Ester, Garware, MTZ, Polyplex, Uflex Ltd., Vacmet, and Vacmet India Limited, pursuant to 19 CFR 351.213(d)(1). The remaining companies subject to the instant review are Jindal and SRF, which the Department has selected as the mandatory respondents.2

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 53106, 53109 (September 2, 2015) (Initiation Notice). The nine companies were Ester Industries Limited (Ester), Garware Polyester Ltd. (Garware), Jindal Poly Films Ltd. of India (Jindal), MTZ Polyesters Ltd. (MTZ), Polyplex Corporation Ltd. (Polyplex), SRF Limited (SRF), Vacmet, Vacmet India Limited and Uflex Ltd. DuPont Teijin Films, Mitsubishi Polyester Film, Inc., and SKC, Inc. (collectively Petitioners) requested a review for six companies (Ester, Garware, Polyplex, SRF, Jindal, and Vacmet). Polyplex USA LLC and Flex Films (USA) Inc. (collectively Domestic Interested Parties) requested a review for eight companies (Ester, Garware, Jindal, MTZ, Polyplex, SRF, Uflex Ltd., Vacmet and Vacmet India Limited). In addition, Jindal and SRF self-requested an administrative review.

    2See Decision Memorandum for the Preliminary Results and Partial Rescission of the Countervailing Duty (CVD) Administrative Review of Polyethylene Terephthalate Film, Sheet, and Strip (PET film) from India; 2014” (Preliminary Decision Memorandum).

    Scope of the Order

    For purposes of the order, the products covered are all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet and strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00.90. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the order is dispositive.

    Methodology

    The Department is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy, i.e., a government-provided financial contribution that gives rise to a benefit to the recipient, and that the subsidy is specific.3 For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum, dated concurrently with, and hereby adopted by, this notice.

    3See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and section 771(5A) of the Act regarding specificity.

    The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at http://trade.gov/enforcement/frn/index.html. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Preliminary Results of Review

    We preliminarily determine the total estimated net countervailable subsidy rates for the period January 1, 2014, through December 31, 2014 to be:

    Manufacturer/exporter Subsidy rate
  • (percent
  • ad valorem)
  • Jindal Poly Films of India Limited 5.10 SRF Limited 2.16
    Disclosure and Public Comment

    The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.4 Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within five days after the time limit for filing case briefs.5 Rebuttal briefs must be limited to issues raised in the case briefs.6 Parties who submit case or rebuttal briefs are requested to submit with the argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.7

    4See 19 CFR 351.224(b).

    5See 19 CFR 351.309(c)(l)(ii) and 351.309(d)(l).

    6See 19 CFR 351.309(d)(2).

    7See 19 CFR 351.309(c)(2) and (d)(2).

    Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.8 Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, we will inform parties of the scheduled date for the hearing which will be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a time and location to be determined.9 Parties should confirm by telephone the date, time, and location of the hearing. Issues addressed at the hearing will be limited to those raised in the briefs.10 All briefs and hearing requests must be filed electronically and received successfully in their entirety through ACCESS by 5:00 p.m. Eastern Time on the due date.

    8See 19 CFR 351.310(c).

    9See 19 CFR 351.310.

    10See 19 CFR 351.310(c).

    Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.

    Assessment Rates and Cash Deposit Requirement

    Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.

    Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213 and 351.221(b)(4).

    Dated: July 27, 2016. Ronald K. Lorentzen, Deputy Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum 1. Summary 2. Background 3. Partial Rescission of Administrative Review 4. Scope of the Order 5. Subsidies Valuation Information 6. Analysis of Programs 7. Recommendation
    [FR Doc. 2016-18336 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-050] Ammonium Sulfate From the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective August 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Galantucci at (202) 482-2923 or William Horn at (202) 482-2615, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    On June 14, 2016, the Department of Commerce (the Department) initiated the countervailing duty (CVD) investigation of ammonium sulfate from the People's Republic of China.1 The notice of initiation stated that, in accordance with section 703(b)(l) 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 65 days after the date of initiation, unless postponed. Currently, the preliminary determination is due no later than August 18, 2016.

    1See Ammonium Sulfate From the People's Republic of China: Initiation of Countervailing Duty Investigation, 81 FR 40661 (June 22, 2016).

    Postponement of the Preliminary Determination

    Section 703(b)(1) of the Act, requires the Department to issue the preliminary determination in a CVD investigation within 65 days after the date on which the Department initiated the investigation. However, in accordance with 19 CFR 351.205(e), if the petitioner makes a timely request for an extension, section 703(c)(1)(A) of the Act allows the Department to postpone the preliminary determination until no later than 130 days after the date on which the Department initiated the investigation. Under 19 CFR 351.205(e), a petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reason for the request. The Department will grant the request unless it finds compelling reasons to deny the request.2

    2See 19 CFR 351.205(e).

    On July 22, 2016, PCI Nitrogen, LLC (Petitioner) submitted a timely request pursuant to section 703(c)(1)(A) of the Act and 19 CFR 351.205(e) to postpone the preliminary determination due to the number and complex nature of subsidy programs under investigation.3

    3See Letter from Petitioner to the Secretary of Commerce, “Ammonium Sulfate from the People's Republic of China: Request for Postponement of the Preliminary Determination,” dated July 22, 2016.

    In accordance with 19 CFR 351.205(e), Petitioner has stated the reason for requesting a postponement of the preliminary determination and the record does not present any compelling reasons to deny Petitioner's request. Therefore, the Department will extend the deadline for completion of the preliminary determination by 65 days (i.e., 130 days after the date of initiation of this investigation). However, because 65 days following the current deadline falls on a Saturday, the new deadline is Monday, October 24, 2016.4 Pursuant to section 705(a)(l) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination will continue to be 75 days after the date of the preliminary determination.

    4See Notic e of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

    This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).

    Dated: July 27, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-18416 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Extension of U.S. Section Member Appointments to the United States-Brazil CEO Forum AGENCY:

    International Trade Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    In March 2007, the Governments of the United States and Brazil established the U.S.-Brazil CEO Forum (Forum). Through a Federal Register notice on May 29, 2013 (78 FR 32,239), the Department of Commerce solicited applicants for appointment to the U.S. Section for a term of three years to expire August 13, 2016, and appointed individuals to all twelve Member positions. Vacancies arising during the three-year term were filled through the same process (see 80 FR 13,520 (Mar. 16, 2015) and 80 FR 17,032 (Mar. 31, 2015)). For the reasons explained below, the Secretary of Commerce and the Director of the National Economic Council and Assistant to the President for Economic Policy are extending the current U.S. Section Member appointments through June 30, 2017.

    ADDRESSES:

    U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 30013, Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Raquel Silva, Office of Latin America and the Caribbean, U.S. Department of Commerce, [email protected], telephone: (202) 482-4157.

    SUPPLEMENTARY INFORMATION:

    The Secretary of Commerce and the Director of the National Economic Council and Assistant to the President for Economic Policy, together with the Brazilian Minister of Casa Civil and the Brazilian Minister of Industry, Foreign Trade and Services co-chair the U.S.-Brazil CEO Forum, pursuant to the Terms of Reference signed in March 2007 by the U.S. and Brazilian governments, as amended, which set forth the objectives and structure of the Forum. The Terms of Reference may be viewed at: http://www.trade.gov/ceo-forum/. The Forum, consisting of both private and public sector members, brings together leaders of the respective business communities of the United States and Brazil to discuss issues of mutual interest, particularly ways to strengthen the economic and commercial ties between the two countries. The Forum consists of the U.S. and Brazilian Government co-chairs and a Committee comprised of private sector members. The Committee is composed of two Sections, each consisting of up to twelve members from the private sector, representing the views and interests of the private sector business community in the United States and Brazil. Each government appoints the members to its respective Section. The Committee provides joint recommendations to the two governments that reflect private sector views, needs and concerns regarding the creation of an economic environment in which their respective private sectors can partner, thrive and enhance bilateral commercial ties to expand trade between the United States and Brazil.

    As stated in the amended Terms of Reference, “members [of the Forum] normally are to serve three-year terms but may be reappointed.” The current U.S. Section Member appointments expire on August 13, 2016. The postponement of the most recent scheduled meeting of the United States-Brazil CEO Forum has resulted in a need for additional time for the current U.S. Section Members to finish on-going work with the Brazil Section Members to finalize and present Committee joint recommendations to the Government co-chairs. For that reason, the Secretary of Commerce and the Director of the National Economic Council and Assistant to the President for Economic Policy have decided to extend the current U.S. Section Member appointments through June 30, 2017.

    Dated: July 27, 2016. Alexander Peacher, Acting Director for the Office of Latin America & the Caribbean.
    [FR Doc. 2016-18338 Filed 8-2-16; 8:45 am] BILLING CODE 3510-HE-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE315 Endangered Species; File Nos. 19331 and 19642 AGENCY:

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

    ACTION:

    Notice; issuance of permits.

    SUMMARY:

    Notice is hereby given that Harold Brundage (File No. 19331), Environmental Research and Consulting, Inc., 126 Bancroft Rd; Kennett Square, PA 19348, and Jason Kahn (File No. 19642), NOAA Fisheries, 1315 East-West Highway, Silver Spring, MD 20910, have been issued permits to take shortnose sturgeon (Acipenser brevirostrum) and Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) for purposes of conducting scientific research.

    ADDRESSES:

    The permits and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    FOR FURTHER INFORMATION CONTACT:

    Malcolm Mohead or Erin Markin, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    On November 27, 2015, notice was published in the Federal Register (80 FR 74085) that requests for scientific research permits to take shortnose sturgeon and Atlantic sturgeon had been submitted by the above-named individuals. The requested permits have been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226).

    File No. 19331: The applicant's objectives are to characterize Atlantic and shortnose sturgeon habitat use in the lower Delaware River (between rkm 0 to rkm 245), studying their relative abundance, recruitment, temporal-spatial distributions, and reproduction. The permit would be valid for five years from the date of issuance.

    File No. 19642: The applicant will be authorized to determine and quantify new populations of Atlantic and shortnose sturgeon in the York, Rappahannock, Potomac, and Susquehanna Rivers, and other Chesapeake Bay tributaries of Virginia and Maryland. Additionally, researchers will monitor sturgeon spawning activity, movement, and habitat use through telemetry and side-scan sonar technology. Additionally, researchers will sample Atlantic and shortnose sturgeon captured under other ESA incidental take permits or incidental take statements of other actions to track their coastal wide movements of these species. The permit would be valid for five years from the date of issuance.

    Issuance of these permits, as required by the ESA, is based on a finding that such permits (1) are applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) are consistent with the purposes and policies set forth in section 2 of the ESA.

    Dated: July 28, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-18348 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE776 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, August 18, 2016, at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; Phone: (508) 339-2200; Fax: (508) 339-1040.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The committee will discuss two ongoing habitat-related management actions. Related to the Omnibus Deep-Sea Coral Amendment, the committee will review preliminary economic and biological impacts of deep-sea coral zone designations, and discuss whether the amendment should include alternatives to restrict lobster trap gear within these zones. Related to the Clam Dredge Framework, the committee will review habitat characterization data for two habitat management areas (HMAs) and develop guidance for the Plan Development Team related to the design of clam dredge exemption area alternatives within these HMAs. The committee may discuss other business as needed.

    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 these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at 978-465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 29, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-18374 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE763 Marine Mammals; File No. 18879 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that Heather E. Liwanag, Ph.D. (California Polytechnic State University, San Luis Obispo, CA 93407-0401), has applied in due form for a permit to conduct research on Weddell seals (Leptonychotes weddellii) near McMurdo Station, Antarctica.

    DATES:

    Written, telefaxed, or email comments must be received on or before September 2, 2016.

    ADDRESSES:

    The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 18879 from the list of available applications.

    These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Sara Young or Amy Sloan, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216).

    The applicant proposes to study the thermoregulatory strategies (insulation, thermogenic mechanisms) by which Weddell seal pups maintain euthermia in air and in water and examine the development of diving capability (oxygen stores) as the animals prepare for independent foraging. This study will take place near McMurdo Station in Antarctica. In each field season (two field seasons total), nine pups (18 total) will be handled at five time points between two days and eight weeks of age. Protocols not requiring sedation (mass, morphometrics, core and surface temperatures, metabolic rates) will be conducted on all nine individuals at all five time points under manual restraint. Protocols requiring anesthesia (body composition, biopsies, and blood volume analysis) will be sampled twice for each animal: Once between two days and four weeks of age, and again at six weeks; one additional anesthesia procedure will be conducted for a single blood draw at seven or eight weeks. An additional 12 pups will be handled for vibrissae sampling annually, and a second cohort of nursing pups may be handled annually if study animals are not relocated at any of the 5 time points for resampling. The applicant is also proposing to take up to 700 animals for flipper tag reading, thermal imaging, and incidental harassment due to work with conspecifics. Up to six pup mortalities are requested annually, not to exceed ten over the two field seasons. The permit would be valid for three years.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: July 28, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-18298 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE777 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a Post Council Meeting Briefing for the public via Webinar.

    DATES:

    The meeting will be held from 6 p.m. to 9 p.m. on Wednesday, August 24, 2016.

    ADDRESSES:

    The meeting will take place via Webinar at: https://attendee.gotowebinar.com/register/7233203590071678980.

    Council address: Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Emily Muehlstein, Fisheries Outreach Specialist, Gulf of Mexico Fishery Management Council; [email protected], telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION:

    Agenda I. Welcome and Introductions II. Review of Council actions taken during the August, 2016 Council Meeting III. Questions and Answers IV. Adjourn

    You may register for the Post August Council Meeting Briefing Webinar at: https://attendee.gotowebinar.com/register/7233203590071678980.

    After registering, you will receive a confirmation email containing information about joining the Webinar.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 29, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-18373 Filed 8-2-16; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Determination Under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR Agreement”) AGENCY:

    The Committee for the Implementation of Textile Agreements.

    ACTION:

    Determination to add a product in unrestricted quantities to Annex 3.25 of the CAFTA-DR Agreement.

    EFFECTIVE DATE:

    August 3, 2016.

    SUMMARY:

    The Committee for the Implementation of Textile Agreements (“CITA”) has determined that certain two-ply polyester yarn, as specified below, is not available in commercial quantities in a timely manner in the CAFTA-DR countries. The product will be added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities.

    FOR FURTHER INFORMATION CONTACT:

    Richard Stetson, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.

    For Further Information On-Line: http://web.ita.doc.gov/tacgi/CaftaReqTrack.nsfunder “Approved Requests,” Reference number: 202.2016.06.01.Yarn.ST&RforPolartec.

    SUPPLEMENTARY INFORMATION:

    Authority: The CAFTA-DR Agreement; Section 203(o)(4) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (“CAFTA-DR Implementation Act”), Public Law 109-53; and Presidential Proclamations 7987 (February 28, 2006) and 7996 (March 31, 2006).

    Background: Annex 3.25 of the CAFTA-DR Agreement contains a list of fabrics, yarns, and fibers that the Parties to the CAFTA-DR Agreement have determined are not available in commercial quantities in a timely manner in the territory of any Party. Articles 3.25.4 and 3.25.5 of the CAFTA-DR Agreement provide that this list may be modified if the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party. Section 203(o)(4) of the CAFTA-DR Implementation Act authorizes the President to make determinations regarding commercial availability of fabrics, yarns and fibers in the CAFTA-DR countries and to proclaim modifications to the list in Annex 3.25. The CAFTA-DR Implementation Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamations 7987 and 7996, the President delegated to CITA the authority under section 203(o)(4) of CAFTA-DR Implementation Act for modifying the Annex 3.25 list. Pursuant to this authority, on September 15, 2008, CITA published modified procedures it would follow in considering requests to modify the Annex 3.25 list of products determined to be not commercially available in the territory of any Party to CAFTA-DR (Modifications to Proceduresfor Considering Requests Under the Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement, 73 FR 53200) (“CITA's procedures”).

    On June 1, 2016, the Chairman of CITA received a Request for a Commercial Availability Determination (“Request”) from Sandler, Travis & Rosenberg, P.A. on behalf of Polartec LLC. (“Polartec”) for a certain two-ply polyester yarn, as specified below.

    On June 3, 2016, in accordance with CITA's procedures, CITA notified interested parties of the Request, which was posted on the dedicated Web site for DR-CAFTA Commercial Availability proceedings. In its notification, CITA advised that any Response with an Offer to Supply (“Response”) to the Request must be submitted by June 15, 2016, and any rebuttal comments to a Response (“Rebuttal”) must be submitted by June 21, 2016.

    On June 15, 2016, the Chairman received two Responses: one from CS Central America S.A. de C.V (“CSCA”), and one from Unifi Manufacturing, Inc (“Unifi”). On June 24, 2016, Unifi withdrew its Response. On June 28, 2016, Polartec submitted its Rebuttal.

    In accordance with Section 203(o)(4) of the DR-CAFTA Implementation Act, Article 3.25 of the DR-CAFTA, and section 8(c)(4) of CITA's procedures, because there was insufficient information to make a determination within 30 U.S. business days, CITA extended the deadline to make its determinations by 14 U.S. business days, and called for a public meeting on July 8, 2016, to collect additional information from representatives of Polartec and CSCA and provide the interested entities with an opportunity to submit additional evidence to support their claims regarding the capability of CSCA to supply the subject yarn. At CITA's request, additional information was submitted by CSCA for the record on July 12 and July 13, 2016.

    Section 8 of CITA's procedures provide that after receiving a Request, a determination will be made as to whether the subject product is available in commercial quantities in a timely manner in the CAFTA-DR countries. In the instant case, CSCA provided several samples to Polartec, which both CSCA and Polartec had tested to determine if the samples met the required specifications. Because the test results provided for the record were inconclusive, CITA looked to other information in the record to determine whether CSCA had demonstrated it had the capability of supplying the subject product as specified.

    Section 6(b)(3)(iv) of CITA's procedures state that “regardless of whether a sample is provided, a respondent must demonstrate its ability to produce the subject product by providing sufficient relevant information regarding their production capability.” The record clearly indicates that, while CSCA provided some information regarding their current production and development timeline, CSCA had not provided any information regarding its production process, specifically with respect to: (1) How its experience with its current yarn production imparted the necessary expertise to make yarns with the specified physical properties and performance characteristics; or (2) what kind of modifications CSCA would have to make to its current yarn production processes to produce the subject yarn. CITA finds that, given the differences between the yarns CSCA currently produces and the specifications of the subject yarn, this information was necessary to adequately demonstrate CSCA's capability to supply the subject yarn, which requires significantly different physical properties and performance characteristics. CSCA had several opportunities to present CITA with the information required under its procedures, but failed to do so in the course of due diligence, in its Response, or in the public meeting. Therefore, because CSCA did not provide sufficient relevant information regarding its production capability as required under CITA's procedures, CSCA did not demonstrate its capability to produce the subject yarn in commercial quantities in a timely manner. Therefore, in accordance with section 203(o) of the CAFTA-DR Implementation Act, and Section 8 of CITA's procedures, as no interested entity has substantiated its ability to supply the subject product in commercial quantities in a timely manner, CITA has determined to add the specified fabric to the list in Annex 3.25 of the CAFTA-DR Agreement.

    The subject product has been added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. A revised list has been posted on the dedicated Web site for CAFTA-DR Commercial Availability proceedings.

    Specifications: Certain Two-Ply Polyester Yarn

    HTSUS: 5402.33.60.

    Fiber Content: 100% Polyester (60-66% Cationic, 34-40% Disperse).

    Number of Plies: 2.

    Yarn Size: 122 Metric (73.8 denier/82 decitex) to 103 Metric (87 denier/97 decitex).

    Filaments: 144 total.

    Yarn Properties: False Twist Textured—Mechanical process by which POY material(s) are heated, drawn, twisted/untwisted, and heat set in order to add bulk and comfort characteristics.

    3.12 to 3.45 Break Force/Tenacity (CN) (ISO 2062) 30.68 to 33.92% Elongation (ISO 2062) 7.5 to 8.5% Crimp contraction (ASTM D4031) 8.0 to 8.8% Shrinkage (ASTM D2259) 154 to 170 Interlace per meter (manual count in 10 cm section—extrapolated to 1 m 2.5 to 2.7% Oil pick up (ASTM D2257) NOTE:

    The yarn size designations describe a range of yarn specifications for yarn before knitting, dyeing and finishing of the fabric. They are intended as specifications to be followed by the mill in sourcing yarn used to produce fabric. Dyeing, finishing, and knitting can alter the characteristics of the yarn as it appears in the finished fabric. This specification therefore includes yarns appearing in the finished fabric as finer or coarser than the designated yarn sizes provided that the variation occurs after processing of the greige yarn and production of the fabric. The specifications for the yarn apply to the yarn itself prior to cutting, sewing and finishing of a finished garment. Such processing may alter the measurements.

    Janet E. Heinzen, Acting Chairman, Committee for the Implementation of Textile Agreements.
    [FR Doc. 2016-18345 Filed 8-2-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF DEFENSE Department of the Army Record of Decision for Activities and Operations at Yuma Proving Ground, Arizona AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Department of the Army announces the availability of the Record of Decision (ROD) for implementation of activities and operations at Yuma Proving Ground (YPG), AZ. Pursuant to the National Environmental Policy Act (NEPA), the Department of the Army prepared a Programmatic Environmental Impact Statement (PEIS) that evaluated the potential environmental and socioeconomic effects of proposed construction and demolition of facilities and infrastructure, and proposed changes to current types and levels of testing and training at YPG. The Army selected the Preferred Alternative identified in the Final PEIS. The ROD explains that the Army will proceed with its Preferred Alternative to implement 296 proposed activities, including construction and demolition of facilities and infrastructure, changes to current types and levels of testing and training, and activities conducted under private industry partnerships.

    ADDRESSES:

    For questions concerning the ROD, please contact Mr. Sergio Obregon, U.S. Army Garrison Yuma Proving Ground, National Environmental Policy Act Coordinator, IMYM-PWE, Yuma, AZ 85365-9498. Questions may be mailed to that address or emailed to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Mr. Chuck Wullenjohn, Yuma Proving Ground Public Affairs Office, at (928) 328-6189 Monday through Thursday from 6:30 a.m. to 5:00 p.m., Mountain Standard Time.

    SUPPLEMENTARY INFORMATION:

    Yuma Proving Ground is a major range and test facility base, responsible for testing technology, equipment, and weapon systems. The purpose of the selected action is to provide upgraded facilities for testing military ground and aerial vehicle systems, weapons, ammunitions, sensors, and guidance systems for performance and reliability, and to provide realistic training for military units. The Final PEIS, published in April 2015, examined the potential environmental and socioeconomic impacts associated with implementing new activities and operations at YPG. Activities addressed in the Final PEIS included construction and demolition of facilities and infrastructure, and changes to current types and levels of testing and training. It provided thorough analysis under NEPA for the short-term, well-defined projects and allows less well-defined projects to be implemented following a focused, site-specific NEPA analysis that would tier from the PEIS.

    The ROD incorporates analysis contained in the Final PEIS for activities and operations at YPG, as well as comments provided during formal comment and review periods, to include the Final PEIS waiting period.

    The Army considered reasonable alternatives for components of the activities in the Proposed Action and has selected an alternative that will have a lower impact for some projects than would the original Proposed Action. These include reduced areas and selection of a smaller area for some of the proposed activities to avoid or minimize potential impacts.

    Implementation of this decision is expected to result in direct, indirect, and cumulative impacts to environmental resources. To minimize the potential adverse impacts from implementation of the selected alternative, the Army will mitigate these effects through a variety of mitigation and control measures, as described in the ROD. All practicable means to avoid or minimize environmental harm from the selected alternative have been adopted. In making this decision, the Army is aware that implementation of the selected alternative could result in potentially significant impacts to Fire Management, Soils, and Vegetation, even after implementation of mitigation measures. The selected alternative represents a balance between mission requirements and stewardship of the environment.

    The full text of the ROD and the Final PEIS are available at the following Web site: http://www.yuma.army.mil/Documents.aspx.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2016-18364 Filed 8-2-16; 8:45 am] BILLING CODE 5001-03-P
    DEPARTMENT OF DEFENSE Office of the Secretary Notice of Intent To Return Human Remains: National Museum of Health and Medicine, Defense Health Agency, Silver Spring, MD AGENCY:

    Office of the Secretary, DoD.

    ACTION:

    Notice.

    SUMMARY:

    The National Museum of Health and Medicine (NMHM), in consultation with appropriate descendant and memorial organizations, shall release the human remains of an unidentified child's skull, aged 6-10 years, for burial alongside other victim remains of the 1857 Mountain Meadows Massacre, interred by the U.S. Army in 1859. Next-of-kin, or representatives of any organizations who believe they have a legitimate claim to the remains of victims of the 1857 Mountain Meadows Massacre, who wish to assert a legitimate claim for these remains or otherwise direct their disposition should submit a written request to the NMHM. If no additional claimants come forward, transfer of possession of the human remains to the aforementioned descendant and memorial organizations stated in this notice may proceed.

    DATES:

    Next-of-kin or representatives of any relevant organizations that wish to submit a legitimate claim for these remains or otherwise direct disposition should submit a written request, with information in support of their claim, to the NMHM at the address stated in the ADDRESSES section by September 2, 2016.

    ADDRESSES:

    Brian Spatola, National Museum of Health and Medicine, 2460 Linden Lane #2500, Silver Spring, MD 20910. Telephone: 301-319-3353; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Statutory Authority for the intended actions include: Public Law 103-337, div. A, title X, § 1067, Oct. 5, 1994, 108 Stat. 2851, as amended by Pub. L. 105-78, title VII, § 702, Nov. 13, 1997, 111 Stat. 1524 (reprinted in the notes to 10 U.S.C. 176) as statutory authority for the NMHM; and DoDD 5136.13, as the Director, Defense Health Agency's general authority over matters concerning the Museum as a component of the Defense Health Agency.

    History and Description of Human Remains: The human remains consist of the cranium of a child with an estimated age of 6-10 years, based on dental development. The cranium shows evidence of a perforating gunshot wound. In 1857, members of the Church of Jesus Christ of Latter-day Saints (allegedly in coordination with Native American allies) murdered approximately 120 members of a wagon train travelling from Arkansas to California in an event known historically as the Mountain Meadows Massacre. The victims included men, women, and children. In 1859, the U.S. Army travelled to Utah to investigate the incident, bury the dead, and return the surviving children to Arkansas. At this time, U.S. Army Officers removed a child's skull from the massacre site. In 1864, U.S. Army Surgeon, B.A. Clements, forwarded a child's skull from the Mountain Meadows Massacre to the Army Medical Museum, now the NMHM. The specimen was forwarded in accordance with the Surgeon General's order for officers to “collect and to forward . . . all specimens of morbid anatomy, surgical or medical which may be regarded as valuable . . . and other such matters as may prove of interest in the study of military medicine or surgery.” Clements was stationed in the region where the massacre occurred during the time of the Army's 1859 activity. It is believed the skull was passed on to him by others who had participated in the 1859 investigation. In 2009, the NMHM began receiving requests with conflicting perspectives from multiple parties claiming the child's skull for burial and scientific testing. The parties consulting with the museum include the Mountain Meadows Massacre Descendants (MMMD), the Mountain Meadows Monument Foundation (MMMF), the Mountain Meadows Association (MMA), and Ms. Catherine Baker of North Carolina. The NMHM engaged all prior, interested parties and requested all such parties enter into a joint agreement documenting their consensus on the disposition of the remains. The NMHM has received confirmation of consensus from a majority of all such parties, advocating for the human remains to be buried alongside other victims of the 1857 Mountain Meadows Massacre in Utah.

    Dated: July 29, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-18363 Filed 8-2-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF ENERGY Proposed Agency Information Collection AGENCY:

    U.S. Department of Energy.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of DOE's responsibility to develop a regulation pursuant to section 934 of the Energy Independence and Security Act of 2007 (EISA) on implementing the Convention on Supplementary Compensation for Nuclear Damage (CSC), including whether the information shall have practical utility; (b) the accuracy of DOE's estimate of the burden of the proposed collection of information, including whether the information shall have practical utility; (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.

    DATES:

    Comments regarding this proposed information collection must be received on or before October 3, 2016. If you anticipate difficulty in submitting comments within that period, contact the person listed in ADDRESSES as soon as possible.

    ADDRESSES:

    Written comments may be submitted electronically by emailing them to: [email protected] We note that email submission will avoid delay associated with security screening of U.S. Postal Service mail.

    Also, written comments should be addressed to Sophia Angelini, Attorney-Advisor, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Sophia Angelini, Attorney-Advisor, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586-0319. Copies of the information collection instrument and instructions can be viewed at http://www.energy.gov/gc/convention-supplementary-compensation-rulemaking.

    SUPPLEMENTARY INFORMATION:

    On December 17, 2014, DOE published a notice of proposed rulemaking (NOPR) in the Federal Register (79 FR 75076) in which it proposed regulations under section 934 of EISA to establish a retrospective risk pooling program whereby, in the event of certain nuclear incidents, nuclear suppliers would be responsible to pay for any contribution by the United States government to the international supplementary fund created by the CSC. DOE held an information session on the proposed regulation on January 7, 2015, followed by a day-long public workshop on February 20, 2015 (80 FR 4227). On March 9, 2015, DOE granted an extension of the public comment period on the NOPR to April 17, 2015 (80 FR 12352). The extension notice highlighted areas of particular attention for public comment, and indicated an intent of DOE's to conduct additional data and information gathering in response to and in consideration of comments provided in the public review and comment process. This proposed collection of information responds in part to DOE's intent to gather additional data and information.

    This information collection request contains: (1) OMB Number: New; (2) Information Collection Request Title: Data Collection for Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation; (3) Type of Request: New; (4) Purpose: This information collection request is necessary for DOE to develop its regulation containing the risk-informed formula required by section 934(e) of EISA for calculating the deferred payment of a nuclear supplier; (5) Annual Estimated Number of Respondents: 150; (6) Annual Estimated Number of Total Responses: 150; (7) Annual Estimated Number of Burden Hours: 5 annual burden hours per response, 750 total annual burden hours; and (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $1,500 annual cost per Respondent, $225,000 annual cost burden for all Respondents.

    Statutory Authority:

    Section 934(f) of the Energy Independence and Security Act of 2007.

    Issued in Washington, DC, on July 29, 2016. Samuel T. Walsh, Deputy General Counsel for Energy Policy, Office of General Counsel.
    [FR Doc. 2016-18419 Filed 8-2-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. IC16-8-000] Commission Information Collection Activities (FERC-539); Comment Request July 25, 2016. Republication Editorial Note:

    Notice document 2016-17896 was originally published on page 49975 in the issue of Friday, July 29, 2016. In that publication the document was incomplete. The corrected document is republished in its entirety.

    AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Comment request.

    SUMMARY:

    In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection FERC-539 (Gas Pipeline Certificates: Import & Export Related Applications) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the Federal Register (81 FR 21859, 4/13/2016) requesting public comments. The Commission received no comments on the FERC-539 and is making this notation in its submittal to OMB.

    DATES:

    Comments on the collection of information are due by August 29, 2016.

    ADDRESSES:

    Comments filed with OMB, identified by the OMB Control No. 1902-0062, should be sent via email to the Office of Information and Regulatory Affairs: [email protected] Attention: Federal Energy Regulatory Commission Desk Officer.

    A copy of the comments should also be sent to the Commission, in Docket No. IC16-8-000, by either of the following methods:

    • eFiling at Commission's Web site: http://www.ferc.gov/docs-filing/efiling.asp.

    • Mail/Hand Delivery/Courier: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: All submissions must be formatted and filed in accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance contact FERC Online Support by email at [email protected], or by phone at: (866) 208-3676 (toll-free), or (202) 502-8659 for TTY.

    Docket: Users interested in receiving automatic notification of activity in this docket or in viewing/downloading comments and issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

    FOR FURTHER INFORMATION CONTACT:

    Ellen Brown may be reached by email at [email protected], by telephone at (202) 502-8663, and by fax at (202) 273-0873.

    SUPPLEMENTARY INFORMATION:

    Title: FERC-539, Gas Pipeline Certificates: Import & Export Related Applications.

    OMB Control No.: 1902-0062.

    Type of Request: Three-year extension of the FERC-539 information collection requirements with no changes to the reporting requirements.

    Abstract: Section 3 of the Natural Gas Act (NGA) 1 provides, in part, that “. . . no person shall export any natural gas from the United States to a foreign country or import any natural gas from a foreign country without first having secured an order from the Commission authorizing it to do so.” The 1992 amendments to Section 3 of the NGA concern importation or exportation from/to a nation which has a free trade agreement with the United States and requires that such importation or exportation: (1) Shall be deemed to be a “first sale” (i.e. not a sale for a resale) and (2) shall be deemed to be consistent with the public interest. Applications for such importation or exportation should be granted without modification or delay.

    1 15 U.S.C. 717-717w.

    The regulatory functions of Section 3 are shared by the Commission and the Secretary of Energy, Department of Energy (DOE). The Commission has the authority to approve or disapprove the construction and operation of particular facilities, the site at which such facilities shall be located, and, with respect to natural gas that involves the construction of new domestic facilities, the place of entry for imports or exit for exports. DOE approves the importation or exportation of the natural gas commodity.2 Additionally, pursuant to the DOE Delegation Order and Executive Order Nos. 10485 and 12038, the Commission has the authority to issue Presidential Permits for natural gas facilities which cross an international border of the United States. Persons seeking Section 3 authorizations or Presidential Permits from the Commission file applications for such requests pursuant to Part 153 of the Commission's Regulations.3

    2 Secretary of DOE's current delegation of authority to the Commission relating to import and export facilities was renewed by the Secretary's Delegation Order No. 00-004.00A, effective May 16, 2006.

    3 Part 153, Subpart B and Subpart C.

    Type of Respondents: The respondents include all jurisdictional natural gas companies seeking authorization from the Commission to import or export natural gas.

    Estimate of Annual Burden:4 The Commission estimates the annual public reporting burden for the information collection as:

    4 The Commission defines burden as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, reference 5 Code of Federal Regulations 1320.3.

    5 The estimates for cost per response are derived using the 2015 FERC average salary plus benefits of $149,489/year (or $72.00/hour). Commission staff finds that the work done for this information collection is typically done by wage categories similar to those at FERC.

    FERC-539: Gas Pipeline Certificates: Import & Export Related Applications Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total
  • number of
  • responses
  • Average
  • burden & cost
  • per response 5
  • Total annual
  • burden hours
  • & total
  • annual cost
  • Cost per
  • respondent
  • ($)
  • (1) (2) (1)*(2)=(3) (4) (3)*(4)=(5) (5)÷(1) 12 2 24 12 hrs.; $864 288 hrs.; $20,736 $1,728

    Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

    Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. R1-2016-17896 Filed 8-2-16; 8:45 am] BILLING CODE 1505-01-D
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. P-12532-006] Pine Creek Mine, LLC; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and Prescriptions

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.

    a. Type of Application: Minor License.

    b. Project No.: 12532-006.

    c. Date filed: February 12, 2016.

    d. Applicant: Pine Creek Mine, LLC.

    e. Name of Project: Pine Creek Mine Tunnel Hydroelectric Project.

    f. Location: The project is located at Pine Creek Mine adjacent to Morgan and Pine Creeks in Inyo County, California. The project's mine access tunnel, mine plug, mine water storage cavity, penstock, generator, and most of its primary transmission line would be located under approximately 60 acres of federal land managed by the United States Forest Service.

    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)-825(r).

    h. Applicant Contact: Craig Rossell, 228 West Bonita Avenue, Claremont, California 91711, (909) 482-1000.

    i. FERC Contact: Joseph Hassell, (202) 502-8079 or [email protected]

    j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.

    The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions 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-12532-006.

    The Commission's Rules of Practice require all intervenors 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 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. This application has been accepted and is now ready for environmental analysis.

    l. The proposed Pine Creek Tunnel Hydroelectric Project would utilize the groundwater discharge of Pine Creek Mine and consist of: (1) The existing Pine Creek Mine site, mine entrance tunnels, mine shafts, and concrete plug; (2) an existing 30-foot-long steel pipe that runs through the concrete plug, to be used as a proposed penstock; (3) a proposed Pelton turbine generating unit located in the mine tunnel with a total installed capacity of 1.5 megawatts; (4) a proposed underground power line that would run approximately 2,500 feet from the generating unit to the mine portal; and (5) another proposed 60-foot-long transmission line from the mine portal to an existing substation on the mine site. The proposed project would have an average annual generation of 5.6 gigawatt-hours.

    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. A copy is also available for inspection and reproduction at the address in item h above.

    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. 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, and .214. 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.

    All filings must (1) bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (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 submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.

    o. Procedural Schedule: The application will be processed according to the following revised Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.

    Milestone Target date Filing of recommendations, preliminary terms and conditions, and preliminary fishway prescriptions September 2016. Commission issues Draft EA or EIS March 2017. Comments on Draft EA or EIS April 2017. Modified Terms and Conditions June 2017. Commission Issues Final EA or EIS September 2017.

    p. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.

    q. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.

    A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. A notice of intent must be served on the applicant(s) named in this public notice.

    Dated: July 28, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-18362 Filed 8-2-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14550-001] New England Hydropower Company, LLC, Hanover Pond Hydro, LLC; Notice of Transfer of Exemption

    1. By letter filed July 20, 2016, New England Hydropower Company, LLC informed the Commission that the exemption from licensing for the Hanover Pond Dam Hydroelectric Project No. 14550, originally issued May 19, 2016 1 has been transferred to Hanover Pond Hydro, LLC. The project is located on the Quinnipiac River in New Haven County, Connecticut. The transfer of an exemption does not require Commission approval.

    1Order Granting Exemption From Licensing (10 MW or Less), 155 FERC ¶ 62,132 (2016).

    2. Hanover Pond Hydro, LLC is now the exemptee of the Hanover Pond Dam Hydroelectric Project, No. 14550. All correspondence should be forwarded to: Mr. Michael C. Kerr, CEO, Hanover Pond Hydro, LLC, 100 Cummings Center Drive, Suite 428N, Beverly, MA 01915.

    Dated: July 28, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-18359 Filed 8-2-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CD16-16-000] Metropolitan District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene

    On July 22, 2016, the Metropolitan District filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Barkhamsted Transmission Hydro No. 1 Project would have an installed capacity of 250 kilowatts (kW) and would be located at a 48-inch-diameter gravity pressure raw water supply pipe. The project would be located near the City of New Hartford in Lichfield County, Connecticut.

    Applicant Contact: Scott Jellison, Metropolitan District, 555 Main Street, Hartford, CT 06142, Phone No. (860) 278-7850, Ext 3522.

    FERC Contact: Robert Bell, Phone No. (202) 502-6062, email: [email protected]

    Qualifying Conduit Hydropower Facility Description: The proposed project would consist of: (1) A proposed 250-kW turbine replacing the existing booster pump (which is unused) in the Puddletown booster pump station and (2) appurtenant facilities. The proposed project would have an estimated annual generating capacity of 1,475 megawatt-hours.

    A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.

    Table 1—Criteria for Qualifying Conduit Hydropower Facility Statutory provision Description Satisfies
  • (Y/N)
  • FPA 30(a)(3)(A), as amended by HREA The conduit is a tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity Y FPA 30(a)(3)(C)(i), as amended by HREA The facility is constructed, operated, or maintained for the generation of electric power and uses for such generation only the hydroelectric potential of a non-federally owned conduit Y FPA 30(a)(3)(C)(ii), as amended by HREA The facility has an installed capacity that does not exceed 5 megawatts Y FPA 30(a)(3)(C)(iii), as amended by HREA On or before August 9, 2013, the facility is not licensed, or exempted from the licensing requirements of Part I of the FPA Y

    Preliminary Determination: Based upon the above criteria, Commission staff has preliminarily determined that the proposal satisfies the requirements for a qualifying conduit hydropower facility under 16 U.S.C. 823a, and is exempted from the licensing requirements of the FPA.

    Comments and Motions to Intervene: The deadline for filing comments contesting whether the facility meets the qualifying criteria is 45 days from the issuance date of this notice.

    The deadline for filing motions to intervene is 30 days from the issuance date of this notice.

    Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.

    Filing and Service of Responsive Documents: All filings must (1) bear in all capital letters the “COMMENTS CONTESTING QUALIFICATION FOR A CONDUIT HYDROPOWER FACILITY” or “MOTION TO INTERVENE,” as applicable; (2) state in the heading the name of the applicant and the project number of the application to which the filing responds; (3) state the name, address, and telephone number of the person filing; and (4) otherwise comply with the requirements of sections 385.2001 through 385.2005 of the Commission's regulations.1 All comments contesting Commission staff's preliminary determination that the facility meets the qualifying criteria must set forth their evidentiary basis.

    1 18 CFR 385.2001-2005 (2015).

    The Commission strongly encourages electronic filing. Please file motions to intervene and 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. A copy of all other filings in reference to this application 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 4.34(b) and 385.2010.

    Locations of Notice of Intent: Copies of the notice of intent can be obtained directly from the applicant or such copies can be viewed and reproduced at the Commission in its Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the web at http://www.ferc.gov/docs-filing/elibrary.asp using the “eLibrary” link. Enter the docket number (e.g., CD16-16-000) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or email [email protected] For TTY, call (202) 502-8659.

    Dated: July 28, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-18361 Filed 8-2-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CD16-17-000] Elephant Butte Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene

    On July 26, 2016, Elephant Butte Irrigation District filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Drop 8 Facility would have an installed capacity of 40 kilowatts (kW), and would be located at the existing Drop 8 check structure of Elephant Butte Irrigation District's Westside Irrigation Canal. The project would be located near La Mesa in Doña Ana County, New Mexico.

    Applicant Contact: Gary L. Esslinger, Treasurer/Manager, Elephant Butte Irrigation District, 530 S. Melendres, Las Cruces, NM 88005, Phone No. (575) 526-6671.

    FERC Contact: Christopher Chaney, Phone No. (202) 502-6778, email: [email protected]

    Qualifying Conduit Hydropower Facility Description: The proposed project would consist of: (1) A drywell, approximately 23 feet by 13 feet, within the canal's right bank; (2) two new turbine/generating units with a total installed capacity of 40 kW; (3) two 24-inch-diameter, 9-foot-long intake pipes; (4) one 48-inch-diameter, 120-foot-long raceway returning water to the Westside Irrigation Canal; and (5) appurtenant facilities. The proposed project would have an estimated annual generating capacity of 230 megawatt-hours.

    A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.

    Table 1—Criteria for Qualifying Conduit Hydropower Facility Statutory Provision Description Satisfies
  • (Y/N)
  • FPA 30(a)(3)(A), as amended by HREA The conduit the facility uses is a tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity Y FPA 30(a)(3)(C)(i), as amended by HREA The facility is constructed, operated, or maintained for the generation of electric power and uses for such generation only the hydroelectric potential of a non-federally owned conduit Y FPA 30(a)(3)(C)(ii), as amended by HREA The facility has an installed capacity that does not exceed 5 megawatts Y FPA 30(a)(3)(C)(iii), as amended by HREA On or before August 9, 2013, the facility is not licensed, or exempted from the licensing requirements of Part I of the FPA Y

    Preliminary Determination: The proposed addition of the hydroelectric project along the existing irrigation canal will not alter its primary purpose. Therefore, based upon the above criteria, Commission staff preliminarily determines that the proposal satisfies the requirements for a qualifying conduit hydropower facility, which is not required to be licensed or exempted from licensing.

    Comments and Motions to Intervene: Deadline for filing comments contesting whether the facility meets the qualifying criteria is 45 days from the issuance date of this notice.

    Deadline for filing motions to intervene is 30 days from the issuance date of this notice.

    Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.

    Filing and Service of Responsive Documents: All filings must (1) bear in all capital letters the “COMMENTS CONTESTING QUALIFICATION FOR A CONDUIT HYDROPOWER FACILITY” or “MOTION TO INTERVENE,” as applicable; (2) state in the heading the name of the applicant and the project number of the application to which the filing responds; (3) state the name, address, and telephone number of the person filing; and (4) otherwise comply with the requirements of sections 385.2001 through 385.2005 of the Commission's regulations.1 All comments contesting Commission staff's preliminary determination that the facility meets the qualifying criteria must set forth their evidentiary basis.

    1 18 CFR 385.2001-2005 (2015).

    The Commission strongly encourages electronic filing. Please file motions to intervene and 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. A copy of all other filings in reference to this application 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 4.34(b) and 385.2010.

    Locations of Notice of Intent: Copies of the notice of intent can be obtained directly from the applicant or such copies can be viewed and reproduced at the Commission in its Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the web at http://www.ferc.gov/docs-filing/elibrary.asp using the “eLibrary” link. Enter the docket number (i.e., CD16-17) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or email [email protected] For TTY, call (202) 502-8659.

    Dated: July 28, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-18358 Filed 8-2-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [Petitions IV-2014-5 and -6; FRL-9950-17-Region 4] Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permits for ABC Coke and Walter Coke (Jefferson County, Alabama) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of final order on petitions to object to state operating permits.

    SUMMARY:

    The Environmental Protection Agency (EPA) Administrator signed an Order, dated July 15, 2016, denying petitions to object to Clean Air Act (CAA) title V operating permits issued by the Jefferson County Department of Health (JCDH) to ABC Coke for its facility located in Tarrant and Walter Coke for its facility located in North Birmingham, both in Jefferson County, Alabama. This Order constitutes a final action on the petitions submitted by Gasp (Petitioner) and received by EPA on October 3, 2014, and December 2, 2014, respectively.

    ADDRESSES:

    Copies of the Order, the petitions, and all pertinent information relating thereto are on file at the following location: EPA Region 4; Air, Pesticides and Toxics Management Division; 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The Order is also available electronically at the following address: https://www.epa.gov/sites/production/files/2016-07/documents/gasp_response2014.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or [email protected]

    SUPPLEMENTARY INFORMATION:

    The CAA affords EPA a 45-day period to review and, as appropriate, the authority to object to operating permits proposed by state permitting authorities under title V of the CAA, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the CAA and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period. Pursuant to sections 307(b) and 505(b)(2) of the CAA, a petition for judicial review of those parts of the Order that deny issues in the petition may be filed in the United States Court of Appeals for the appropriate circuit within 60 days from the date this notice is published in the Federal Register.

    Petitioners submitted petitions regarding the aforementioned ABC Coke and Walter Coke facilities, requesting that EPA object to the CAA title V operating permits (#4-07-0001-03 and 4-07-0355-03, respectively). Petitioner alleged that the permits were not consistent with the CAA because: (1) They lack the conditions necessary to assure compliance with the general prohibition against “air pollution”; (2) they contain conditions governing fugitive dust that are too vague or too restrictive; and (3) JCDH failed to provide Petitioner with sufficient emissions information to participate meaningfully in the permitting process with respect to Walter Coke.

    On July 15, 2016, the Administrator issued an Order denying the petitions. The Order explains EPA's rationale for denying the petitions.

    Dated: July 26, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-18394 Filed 8-2-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL MARITIME COMMISSION Notice of Agreements Filed

    The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the Federal Register. Copies of the agreements are available through the Commission's Web site (www.fmc.gov) or by contacting the Office of Agreements at (202)-523-5793 or [email protected]

    Agreement No.: 012339-001.

    Title: Sealand/APL West Coast of Central America Slot Charter Agreement.

    Parties: APL Co. Pte Ltd; and American President Lines, Ltd. (collectively “APL”); Maersk Line A/S dba Sealand.

    Filing Party: Wayne R. Rohde, Esq.; Cozen O'Conner; 1627 I Street NW., Suite 1100; Washington, DC 20006-4007.

    Synopsis: The amendment would add ports on the Pacific Coast of Guatemala, El Salvador, and Nicaragua to the agreement.

    Agreement No.: 012429.

    Title: CMA CGM/APL Panama—USEC Space Charter Agreement.

    Parties:. APL Co. Pte Ltd; and American President Lines, Ltd. (collectively “APL”); CMA CGM, S.A.

    Filing Party: Draughn B. Arbona, Esq; CMA CGM (America) LLC; 5701 Lake Wright Drive; Norfolk, VA 23502.

    Synopsis: The agreement authorizes APL to charter space to CMA CGM in the trade between Panama and the U.S. East Coast.

    Agreement No.: 012430.

    Title: CMA CGM/APL Colombia/Panama-USEC Space Charter Agreement.

    Parties: APL Co. Pte Ltd; and American President Lines, Ltd. (collectively “APL”)

    Filing Party: Draughn B. Arbona, Esq; CMA CGM (America) LLC; 5701 Lake Wright Drive; Norfolk, VA 23502.

    Synopsis: The agreement authorizes APL to charter space to CMA CGM in the trade between Colombia and Panama on the one hand, and the U.S. East Coast on the other hand.

    Agreement No.: 0123431.

    Title: HSDG/Zim Asia US East Coast Slot Charter Agreement.

    Parties: Hamburg Sud Amerikanische Dampfschifffahrts-Gesellschaft KG and Zim Integrated Shipping Services, Ltd.

    Filing Party: Mark E. Newcomb; ZIM American Integrated Shipping Services Co., LLC; 5801 Lake Wright Dr.; Norfolk, VA 23508.

    Synopsis: The Agreement would authorize Zim to charter space to Hamburg Sud in the trade between China and Korea on one hand, and Panama, Jamaica and the U.S. East Coast on the other hand. The parties have requested Expedited Review.

    Agreement No.: 012432.

    Title: APL/ANL Asia—USWC Space Charter Agreement.

    Parties: APL Co. Pte Ltd; and American President Lines, Ltd. (collectively “APL”); and ANL Singapore Pte Ltd.

    Filing Party: Draughn B. Arbona, Esq; CMA CGM (America) LLC; 5701 Lake Wright Drive; Norfolk, VA 23502.

    Synopsis: The Agreement authorizes APL to charter space to ANL in the trade between Asia and the U.S. West Coast.

    Agreement No.: 012433.

    Title: HLAG/MOL Slot Charter Agreement.

    Parties: Hapag-Lloyd AG and Mitsui O.S.K. Lines, Ltd.

    Filing Party: Wayne Rohde, Esq.; Cozen O'Connor; 1200 Nineteenth Street NW; Washington, DC 20036.

    Synopsis: The Agreement authorizes Hapag-Lloyd to charter space to MOL in the trade between Puerto Rico, the Dominican Republic, and Panama.

    By Order of the Federal Maritime Commission.

    Dated: July 29, 2016. Rachel E. Dickon, Assistant Secretary.
    [FR Doc. 2016-18388 Filed 8-2-16; 8:45 am] BILLING CODE 6731-AA-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 18, 2016.

    A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:

    1. Theresa Dawley, Richfield, Minnesota, Kathryn Appold, Burnsville, Minnesota, and Delbert Dawley, Shakopee, Minnesota, as a group acting in concert, to retain shares of Munich Bancshares, Inc., Munich, North Dakota, and thereby indirectly retain shares of Horizon Financial Bank, both in Munich, North Dakota.

    Board of Governors of the Federal Reserve System, July 29, 2016. Michele T. Fennell, Assistant Secretary of the Board.
    [FR Doc. 2016-18380 Filed 8-2-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency for Healthcare Research and Quality Agency Information Collection Activities: Proposed Collection; Comment Request AGENCY:

    Agency for Healthcare Research and Quality, HHS.

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “The Patient-Centered Medical Home (PCMH) Items Demonstration Study.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.

    DATES:

    Comments on this notice must be received by October 3, 2016.

    ADDRESSES:

    Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at [email protected]

    Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.

    FOR FURTHER INFORMATION CONTACT:

    Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Proposed Project The Patient-Centered Medical Home (PCMH) Items Demonstration Study

    This study is being conducted by AHRQ through its contractor, RAND, pursuant to AHRQ's statutory authority to conduct and support research on health care and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of health care services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).

    Method of Collection

    The patient-centered medical home (PCMH) is a model for delivering primary care that is patient-centered, comprehensive, coordinated, accessible, and continuously improved through a systems-based approach to quality and safety.

    As primary care practices across the United States seek National Committee for Quality Assurance (NCQA) recognition as patient-centered medical homes (PCMH), they can choose to administer the Consumer Assessment of Healthcare Providers and Systems (CAHPS®) Clinician and Group (CG-CAHPS) survey with or without the PCMH supplemental item set (AHRQ, 2010; Hays et al., 2014; Ng et al., 2016; Scholle et al., 2012). NCQA offers a special patient experience distinction to practices that opt to use the PCMH CAHPS items set in their CG-CAHPS survey tool. While over 11,000 practices, representing an estimated 15-18% of primary care physicians, are currently recognized for PCMH by NCQA (NCQA, 2015), fewer than 3% of them submit patient experience surveys to NCQA when applying for recognition under NCQA's PCMH recognition program.

    Despite the rapid movement toward PCMH primary care transformation and the increasing use of PCMH CAHPS items, little is known about the ways in which practices are using these CAHPS data and the PCMH supplemental item information (about access, comprehensiveness, self-management, shared decision making, coordination of care, and information about care and appointments) to understand and improve their patients' experiences during PCMH transformation. The PCMH Items Demonstration Study will investigate:

    • How practices across the U.S. use CAHPS and the PCMH item set during PCMH transformation,

    • How practices assemble and select items for inclusion in their patient experience surveys (e.g. core, PCMH, supplemental, and custom items),

    • Primary care practice leaders' perspectives on NCQA PCMH Recognition and CAHPS Patient Experience Distinction,

    • Effects of changes made during PCMH transformation on patient experiences reported on CAHPS surveys and any PCMH items, and

    • Associations between PCMH transformation and patient experience scores.

    To achieve the goals of this project the following data collections will be implemented:

    (1) Office Manager Questions administered via phone about the participating practice's characteristics to describe the type of practices in the study and to understand how practice characteristics influence PCMH transformation and patient experience.

    (2) Physician Interviews administered via phone with the lead PCMH clinical expert about the details, decisions and processes of PCMH transformation, NCQA PCMH Recognition and CAHPS Patient Experience Distinction and their use of patient experience data during the transformation process.

    (3) PCMH-A Assessment Tool to be completed by the lead PCMH clinical expert (before or after the interview on the standardized form via fax or email) to collect validated metrics on the “PCMH-ness” of the practice.

    (4) CAHPS Patient Experience Data Files, which are patient-level, de-identified CAHPS patient experience data covering the period of PCMH transformation for the participating practice. These data are collected independently of this study by the practice (or network) via its current vendor. We will work with the PCMH clinical expert, or a designated person who handles data, in each of the participating practices to submit these CAHPS data files securely to RAND to understand CAHPS patient experience trends and associations with PCMH implementation during the practice's PCMH journey.

    Characterizing the use of CAHPS and PCMH items by primary care practices will provide important insight into the activities practices conduct during PCMH transformation to improve patient experience scores. This information may be useful in supporting practices that lag behind their peers, learning from practices with outstanding records of patient experience, and providing recommendations that may be used to refine the content of the CAHPS survey items.

    Estimated Annual Respondent Burden

    Table 1 shows the estimated annualized burden and cost for the respondents' time to participate in this data collection. These burden estimates are based on tests of data collection conducted on nine or fewer entities. As indicated below, the annual total burden hours are estimated to be 179 hours. The annual total cost associated with the annual total burden hours is estimated to be $16,899.

    The PCMH Items Demonstration Study will recruit 150 practices including the participating practices' office managers and one physician/lead PCMH clinical expert. We will recruit and administer the Office Manager Questions by phone to 150 office managers, recruit all sampled physicians by sending them a recruitment packet that includes a cover letter, an AHRQ endorsement letter and an information sheet, and then administer the Physician Interview protocol questions by phone to 150 physicians, and 150 physicians will self-administer the PCMH-A Assessment Tool.

    We have calculated our burden estimate for Office Manager Questions asked during physician recruitment using an estimate of 3-5 questions a minute as the Office Manager Questions are closed-ended survey questions. The Office Manager Questions contains 17 questions and is estimated to require an average of 5 minutes; this estimate is supported by the information gathered during a pilot of these questions. For the Physician Interview, we have calculated the burden estimate to require an average of 40 minutes per interview. For the PCMH-A Assessment Tool, we calculated our burden using a conservative estimate of 4.5 items per minute. Prior work suggests that 3-5 items on an assessment tool can typically be completed per minute, depending on item complexity and respondent characteristics (Berry, 2009; Hays & Reeve, 2010). The PCMH-A Assessment tool contains 36 items and is estimated to require an average completion time of 8-10 minutes.

    Participating practices will be asked to submit any available CAHPS Patient Experience data files (e.g. submission of de-identified data including a data dictionary via encrypted transfer) for the period of time covering their NCQA PCMH Recognition history. Each practice will have an average estimate of 3 CAHPS Patient Experience data files to submit per one submission, which we based on the average number of years of PCMH history of the sample. In addition, we conservatively estimate that half of the control practices (25/50) administer CG-CAHPS data, as this percentage is unknown; while 90% of the participating current and past CAHPS practices (90/100) will submit CAHPS data, yielding 115 submissions of CAHPS patient experience data files. As indicated below, the annual total burden is estimated to be 179 hours.

    Exhibit 1—Estimated Annualized Burden Hours Data collection task Number of respondents Number of
  • responses per
  • respondent
  • Hours per
  • response
  • Total burden
  • hours
  • Office Manager Questions 150 1 5/60 12.5 Physician Interview 150 1 40/60 100 PCMH-A Assessment Tool 150 (same physicians as above) 1 (same person as above) 15/60 37.5 CAHPS Patient Experience Data Files 115 1 per practice 15/60 28.75 Total 415 1 75/60 178.75 + The same respondent completes the Physician Interview and PCMH-A Assessment Tool and submits the CAHPS Patient Experience Data Files.
    Exhibit 2—Estimated Annualized Cost Burden Data collection task Number of
  • requests
  • Total burden
  • hours
  • Average
  • hourly wage
  • rate *
  • Total cost
  • burden
  • Office Manager Questions 150 12.5 a $57.44 $718.00 Physician Interview 150 100 b 97.33 9,733.00 PCMH-A Assessment Tool 150 37.5 b 97.33 3,649.88 CAHPS Patient Experience Data Files 115 28.75 b 97.33 2,798.24 Total 300 178.75 55.48 16,899.12 + The same respondent completes the Physician Interview and PCMH-A Assessment Tool and submits the CAHPS Patient Experience Data Files. * Occupational Employment Statistics, May 2015 National Occupational Employment and Wage Estimates United States, U.S. Department of Labor, Bureau of Labor Statistics. http://www.bls.gov/oes/current/oes_nat.htm. a Based on the mean wages for General and Operations Managers, 11-1021 within Healthcare Support Occupations, the occupational group most likely tasked with completing the Office Manager Questions. b Based on the mean wages for Physicians and Surgeons, 29-1060, the occupational group most likely tasked with completing the Physician Interview, PCMH-A Assessment Tool, and submitting the CAHPS Patient Experience Data Files.
    Request for Comments

    In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.

    Sharon B. Arnold, Deputy Director.
    [FR Doc. 2016-18392 Filed 8-2-16; 8:45 am] BILLING CODE 4160-90-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-D-2049] Medical X-Ray Imaging Devices Conformance With International Electrotechnical Commission Standards; Draft Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Medical X-Ray Imaging Devices Conformance With IEC Standards.” This draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to requirements in the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and FDA's regulations that apply to medical devices and electronic products. The draft guidance also provides recommendations to industry on how to comply with the applicable requirements. This draft guidance is not final nor is it in effect at this time.

    DATES:

    Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by November 1, 2016.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-D-2049 for “Medical X-Ray Imaging Devices Conformance With IEC Standards.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    An electronic copy of the guidance document is available for download from the Internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance. Submit written requests for a single hard copy of the draft guidance document entitled “Medical X-Ray Imaging Devices Conformance With IEC Standards” to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.

    FOR FURTHER INFORMATION CONTACT:

    Robert Sauer, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5628, Silver Spring, MD 20993-0002, 301-796-3580.

    SUPPLEMENTARY INFORMATION:

    I. Background

    This draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to requirements in the FD&C Act and FDA's regulations that apply to medical devices and electronic products. In the draft guidance, FDA is seeking to harmonize performance standards prescribed under section 534 of subchapter C (Electronic Product Radiation Control (EPRC)) of the FD&C Act (21 U.S.C. 360kk) with International Electrotechnical Commission (IEC) standards, where appropriate, to help to ensure streamlined regulatory review of submissions for these products. The draft guidance also provides recommendations to industry on how to comply with the applicable requirements. FDA believes industry conformance to certain IEC standards would provide the same level of or improved protection of the public health and safety from electronic radiation as certain EPRC regulatory standards. FDA also believes conformance to certain IEC standards would be sufficient to meet the 510(k) premarket notification requirement for certain devices. FDA review of related radiological health and safety data in premarket submissions, as opposed to EPRC product reports, would maintain or improve device safety while consolidating the information manufacturers submit to FDA.

    II. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Medical X-Ray Imaging Devices Conformance With IEC Standards.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

    III. Electronic Access

    Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the Internet. A search capability for all CDRH guidance documents is available at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance documents are also available at http://www.regulations.gov. Persons unable to download an electronic copy of “Medical X-Ray Imaging Devices Conformance With IEC Standards” may send an email request to [email protected] to receive an electronic copy of the document. Please use the document number 1400014 to identify the guidance you are requesting.

    IV. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed revision of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Reporting and Recordkeeping for Electronic Products—General Requirements—21 CFR parts 1002 through 1050—OMB Control Number 0910-0025—Revision

    The draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to FDA's regulations that apply to medical devices and electronic products. FDA believes industry conformance to certain IEC standards would be sufficient to meet the 510(k) premarket notification requirement for certain of these devices. FDA review of related radiological health and safety data in premarket submissions, as opposed to EPRC product reports, would maintain or improve device safety while consolidating the information manufacturers submit to FDA. Currently, information regarding the IEC standards is submitted as part of the premarket notification (approved under OMB control number 0910-0120). Under the draft guidance, if finalized, respondents may choose to submit declarations of conformity with certain IEC standards—in either a 510(k) or if no 510(k) is submitted in an Abbreviated Report under 21 CFR 1002.12(e)—instead of submitting EPRC reports for certain devices in the circumstances described in the draft guidance.

    Based on an analysis of recent submissions from Fiscal Year (FY) 2015, approximately 93 percent of manufacturers of Class II medical x-ray imaging devices, including CT, fluoroscopy, and stationary x-ray systems, claimed conformance to an applicable IEC standard. Accordingly, we believe that the majority of manufacturers of Class II medical x-ray imaging systems would choose to continue to submit declarations of conformity to these IEC standards and not submit EPRC product reports, supplemental reports, and annual reports under the guidance. The other 7 percent of manufacturers of Class II medical x-ray imaging devices and likely a subset of these 93 percent may choose to submit product reports, supplemental reports, and annual reports.

    In FY 2015, there were 22 Class II product reports and 13 Class I product reports for x-ray imaging devices submitted to FDA. Therefore, we expect a reduction of 34 respondents to the estimated burden for the product reports, supplemental reports, and annual report information collections in table 1 of this document. Because 13 of these x-ray imaging devices are 510(k)-exempt, Class I devices, we would expect an increase of 13 respondents to the estimated burden for the information collection related to Abbreviated Reports in table 1 of this document (as these manufacturers would be submitting their declarations of conformity in these reports), which corresponds to an expected reduction of 13 respondents to the estimated burden for the product reports, supplemental reports, and annual reports information collections in table 1 of this document. This equals an overall reduction of 1,395 hours in OMB control number 0910-0025.

    FDA estimates the burden of this collection of information as follows:

    Table 1—Estimated Annual Reporting Burden 1,2,3 Activity/21 CFR section FDA form Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual
  • responses
  • Average
  • burden per
  • response
  • Total hours
    Product reports—1002.10(a)-(k) 3626—Diagnostic x-ray
  • 3627—CT x-ray
  • 3639—Cabinet x-ray
  • 1,466 1.1 1,613 24 38,712
    3632—Laser 3640—Laser light show 3630—Sunlamp 3646—Mercury vapor lamp 3644—Ultrasonic therapy 3659—TV 3660—Microwave oven 3801—UV lamps Product safety or testing changes—1002.11(a)-(b) 966 1.5 1,449 0.5 725 Abbreviated reports—1002.12 3629—General abbreviated report
  • 3661—X-ray tables, etc.
  • 73 2 146 5 730
    3662—Cephalometric device 3663—Microwave products (non-oven) Annual reports—1002.13(a)-(b)