Federal Register Vol. 81, No.157,

Federal Register Volume 81, Issue 157 (August 15, 2016)

Page Range53907-54475
FR Document

81_FR_157
Current View
Page and SubjectPDF
81 FR 53916 - Import Restrictions Imposed on Archaeological and Ethnological Material of SyriaPDF
81 FR 54166 - Sunshine Act MeetingPDF
81 FR 54179 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Automatic Dependent Surveillance Broadcast (ADS-B) Rebate SystemPDF
81 FR 54041 - Foreign-Trade Zone 92-Gulfport, Mississippi; Application for Expansion of Subzone 92B; Huntington Ingalls Industries; Pascagoula, MississippiPDF
81 FR 54177 - Forty-Fifth Meeting: RTCA Special Committee 206 Plenary Aeronautical Information and Meteorological Data Link ServicesPDF
81 FR 54045 - Xanthan Gum From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Determination of No Shipments, and Preliminary Partial Rescission of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 54181 - Sixty-Eighth Meeting, Special Committee 135, Environmental Conditions and Test Procedures for Airborne EquipmentPDF
81 FR 54178 - RTCA SC-230 Plenary #9 Meeting Call Notice: WG-95 “Inflight Ice Long Range Awareness Systems” Meeting #5PDF
81 FR 53935 - Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank CarsPDF
81 FR 54119 - Withdrawal of 60-Day Notice of Proposed Information Collection: Energy BenchmarkingPDF
81 FR 54100 - Premarket Notification Submissions for Electrosurgical Devices for General Surgery; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 54113 - 30-Day Notice of Proposed Information Collection: FHA TOTAL (Technology Open to Approved Lenders) Mortgage ScorecardPDF
81 FR 54102 - Premarket Notification Submissions for Bipolar Electrosurgical Vessel Sealers for General Surgery; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 54128 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Veterans' Employment and Training Service Competitive Grant Programs ReportingPDF
81 FR 54226 - Advisory Committee Charter RenewalsPDF
81 FR 54126 - Agency Information Collection Activities; Comment Request; Workforce Information Grants to States (WIGS)PDF
81 FR 54127 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Cleanup Program for Accumulations of Coal and Float Coal Dusts, Loose Coal, and Other CombustiblesPDF
81 FR 54177 - Delegation to the Assistant Secretary of State for Educational and Cultural Affairs of the Functions and Authorities Under the Protect and Preserve International Cultural Property ActPDF
81 FR 54114 - 30-Day Notice of Proposed Information Collection: Alternative Inspections-Housing Choice Voucher ProgramPDF
81 FR 54177 - Delegation of Authority Submission of the Semi-Annual Unified AgendaPDF
81 FR 54114 - Additional Clarifying Guidance, Waivers, and Alternative Requirements for Grantees in Receipt of Community Development Block Grant (CDBG) Disaster Recovery Grant Funds Under the Disaster Relief Appropriations Act, 2013PDF
81 FR 54119 - 30-Day Notice of Proposed Information Collection: Single Family Premium Collection Subsystem-Upfront (SFPCS-U)PDF
81 FR 54049 - Submission for OMB Review; Comment RequestPDF
81 FR 54181 - FY 2016 Competitive Research Funding Opportunity: Safety Research and Demonstration (SRD) ProgramPDF
81 FR 54097 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Applications for Food and Drug Administration Approval To Market a New Drug: Patent Submission and Listing Requirements and Application of 30-Month Stays on Approval of Abbreviated New Drug Applications Certifying That a Patent Claiming a Drug Is Valid or Will Not Be InfringedPDF
81 FR 54083 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 53922 - Safety Zone; Apra Outer Harbor, Naval Base GuamPDF
81 FR 54077 - Supplemental Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Transcameron Pipeline Project and Calcasieu Pass Terminal, and Request for Comments on Environmental Issues Related To New Route Amendments and Project ChangesPDF
81 FR 54075 - Combined Notice of FilingsPDF
81 FR 54082 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 54075 - Avocent Corporation; Notice of FilingPDF
81 FR 54081 - Chittenden Falls Hydropower, Inc.; Notice of Intent To File License Application, Filing of Pre-Application Document, Approving Use of the Traditional Licensing ProcessPDF
81 FR 54079 - Cornell University; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
81 FR 54074 - Combined Notice of Filings #1PDF
81 FR 54131 - Southern Nuclear Operating Company; Farley Nuclear Plant, Units 1 and 2, and Vogtle Electric Generating Plant, Units 1 and 2; Use of Optimized ZIRLOTMPDF
81 FR 54073 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Public MeetingPDF
81 FR 54176 - Notice of Senior Executive Service Performance Review Board MembershipPDF
81 FR 54133 - Request for a License To Export High-Enriched UraniumPDF
81 FR 54129 - In the Matter of Plus, LLCPDF
81 FR 53907 - Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air-Conditioning and Heating Equipment and Commercial Warm Air Furnaces; CorrectionPDF
81 FR 54048 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
81 FR 53961 - Energy Conservation Program: Energy Conservation Standards for Portable Air ConditionersPDF
81 FR 54187 - Privacy Act of 1974; Department of Transportation, Federal Aviation Administration, DOT/FAA-801; Aviation Registration Records System of Records NoticePDF
81 FR 54050 - Intent To Prepare a Draft Supplemental Environmental Impact Statement for the Springfield Supplemental Water Supply ProjectPDF
81 FR 54190 - Agency Information Collection; Activity Under OMB Review; Passenger Origin-Destination Survey ReportPDF
81 FR 54119 - Endangered and Threatened Wildlife and Plants; Recovery Permit ApplicationsPDF
81 FR 54094 - NIOSH Center for Motor Vehicle Safety: Midcourse Review of Strategic PlanPDF
81 FR 54051 - Notice of Intent To Grant Exclusive Patent License; Grey Matter, LLCPDF
81 FR 54104 - Notice of Single-Award Deviation From Competition Requirements for the National Center for Medical Home Implementation Cooperative AgreementPDF
81 FR 54019 - List of Fisheries for 2017PDF
81 FR 53922 - Public Affairs Liaison With IndustryPDF
81 FR 53958 - Fisheries of the Northeastern United States; Spiny Dogfish Fishery; 2016-2018 SpecificationsPDF
81 FR 54018 - Endangered and Threatened Wildlife and Plants; 6-Month Extension of Final Determination for the Proposed Listing of the Headwater Chub and Distinct Population Segment of the Roundtail Chub as Threatened SpeciesPDF
81 FR 54085 - Fortiline, LLC; Analysis To Aid Public CommentPDF
81 FR 54099 - Allergenic Products Advisory Committee; Notice of MeetingPDF
81 FR 54096 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 54099 - Facilitating Anti-Infective Drug Development for Neonates and Young Infants; Notice of Public WorkshopPDF
81 FR 54125 - Notice of Lodging of Proposed First Partial Remedial Design/Remedial Action (RD/RA) Consent Decree Under CERCLAPDF
81 FR 54076 - Freepoint Energy Solutions LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54074 - New Creek Wind LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54080 - Cube Yadkin Generation LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54081 - Solar Star California XLI, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54076 - Kingman Wind Energy II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54080 - Kingman Wind Energy I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 54076 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
81 FR 54082 - Combined Notice of Filings #1PDF
81 FR 54146 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Add a Clearing Fund Maintenance FeePDF
81 FR 54155 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to Listing and Trading of Shares of Cumberland Municipal Bond ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 54152 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of the Exchange's Options PlatformPDF
81 FR 54142 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Reflect a Change in the Permitted Size of a Basket Applicable to Shares of ETFS Physical Silver Shares Issued by the ETFS Silver TrustPDF
81 FR 54170 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing of Proposed Rule Change Regarding the Implementation of Functionality To Submit a Cover of Protect on Behalf of Another Participant and the Removal of the Option To Cover of Protect Directly With AgentPDF
81 FR 54162 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee SchedulePDF
81 FR 54134 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of the Exchange's Options PlatformPDF
81 FR 54147 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC (“BOX”) Options FacilityPDF
81 FR 54137 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Rule 24.6PDF
81 FR 54149 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 123D Relating to When a DMM May Reopen a Security ElectronicallyPDF
81 FR 54173 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To List Options That Overlie the FTSE Developed Europe Index and the FTSE Emerging Index, To Raise the Comprehensive Surveillance Agreement Percentage Applicable to Certain Index Options, and To Amend the Maintenance Listing Criteria Applicable to Certain Index OptionsPDF
81 FR 54166 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 11.190(g) Related to Discretionary Peg OrdersPDF
81 FR 54140 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 11.190(f) To Make Correcting and Clarifying ChangesPDF
81 FR 54144 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Amend the Fees SchedulePDF
81 FR 54101 - Request for Nominations on the Tobacco Products Scientific Advisory CommitteePDF
81 FR 54123 - Information Collection: Oil Spill Financial Responsibility for Offshore Facilities; Proposed Collection for OMB Review; Comment Request MMAA104000PDF
81 FR 54018 - Petitions for Reconsideration and Clarification of Action in Rulemaking ProceedingPDF
81 FR 54084 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
81 FR 54216 - Veterans Employment Pay for Success Grant Program (“VEPFS program”)PDF
81 FR 54091 - Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 54226 - Agency Information Collection; Status of Loan Account-Foreclosure or Other Liquidation, VA Form 26-0971; Activity Under OMB ReviewPDF
81 FR 54123 - U.S. Extractive Industries Transparency Initiative Advisory Committee Charter RenewalPDF
81 FR 54052 - Notice Inviting Postsecondary Educational Institutions To Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as AmendedPDF
81 FR 54049 - Marine Mammals; File No. 19706PDF
81 FR 53921 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying BenefitsPDF
81 FR 54056 - Applications for New Awards; Performance Partnership PilotsPDF
81 FR 54109 - Changes in Flood Hazard DeterminationsPDF
81 FR 54108 - Texas; Amendment No. 8 to Notice of a Major Disaster DeclarationPDF
81 FR 54109 - Texas; Amendment No. 6 to Notice of a Major Disaster DeclarationPDF
81 FR 54120 - Endangered Species Recovery Permit ApplicationsPDF
81 FR 54048 - Submission for OMB Review; Comment RequestPDF
81 FR 54041 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 54108 - Montana; Major Disaster and Related DeterminationsPDF
81 FR 54109 - Texas; Amendment No. 7 to Notice of a Major Disaster DeclarationPDF
81 FR 54178 - Twenty-Ninth Meeting Special Committee 216 Aeronautical Systems SecurityPDF
81 FR 54085 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 54085 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 54107 - Waterway Suitability Assessment for Expansion of Liquefied Natural Gas Facility; Ingleside, TXPDF
81 FR 54174 - Montana Disaster # MT-00098PDF
81 FR 54174 - Data Collection Available for Public CommentsPDF
81 FR 54106 - National Institute on Drug Abuse; Notice of MeetingPDF
81 FR 54107 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
81 FR 54105 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
81 FR 54106 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
81 FR 54106 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 53986 - Commercial Fishing Vessels-Implementation of 2010 and 2012 LegislationPDF
81 FR 54047 - Endangered Species; File No. 20339PDF
81 FR 54190 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 54042 - Drawn Stainless Steel Sinks From the People's Republic of China; Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015PDF
81 FR 54051 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Race to the Top-Early Learning Challenge Annual Performance ReportPDF
81 FR 54175 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
81 FR 54043 - Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan: Continuation and Revocation of Antidumping Duty OrdersPDF
81 FR 53912 - Amendment of Class C Airspace; Syracuse Hancock International Airport, NYPDF
81 FR 53913 - Amendment of Class C Airspace; Boise, IDPDF
81 FR 53915 - Amendment of Class C Airspace; Peoria, ILPDF
81 FR 54088 - Agency Information Collection Activities; Proposed Collection; Comment RequestPDF
81 FR 54105 - Notice of Availability: Test Tools and Test Procedures Approved by the National Coordinator for the ONC Health IT Certification ProgramPDF
81 FR 54123 - U.S. Coral Reef Task Force Public Meeting and Public CommentPDF
81 FR 54389 - Fish and Fish Product Import Provisions of the Marine Mammal Protection ActPDF
81 FR 53978 - Air Plan Approval; NH; Control of Volatile Organic Compound Emissions From Minor Core ActivitiesPDF
81 FR 53926 - Air Plan Approval; NH; Control of Volatile Organic Compound Emissions From Minor Core ActivitiesPDF
81 FR 53964 - Proposed Amendment of Class E Airspace, Albany, ORPDF
81 FR 53931 - n-Butyl 3-hydroxybutyrate and Isopropyl 3-hydroxybutyrate; Exemption From the Requirement of a TolerancePDF
81 FR 53962 - Proposed Amendment of Class D and E Airspace; Eugene, OR, and Corvallis, ORPDF
81 FR 53929 - Partial Stay; Arizona; Regional Haze Federal Implementation PlanPDF
81 FR 53980 - Medicaid Program; Disproportionate Share Hospital Payments-Treatment of Third Party Payers in Calculating Uncompensated Care CostsPDF
81 FR 53962 - Energy Conservation Program: Energy Conservation Standards for Uninterruptible Power Supplies; CorrectionPDF
81 FR 53924 - Approval of Iowa's Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress ReportPDF
81 FR 53965 - Standards and Procedures for the Enforcement of the Immigration and Nationality ActPDF
81 FR 53908 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 53986 - Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984PDF
81 FR 53979 - Federal Travel Regulation (FTR); Clarification of Payment in Kind for Speakers at Meetings and Similar FunctionsPDF
81 FR 54317 - Amendments to Federal Mortgage Disclosure Requirements Under the Truth in Lending Act (Regulation Z)PDF
81 FR 54421 - Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and WelfarePDF
81 FR 54229 - Control of Communicable DiseasesPDF

Issue

81 157 Monday, August 15, 2016 Contents Consumer Financial Protection Bureau of Consumer Financial Protection PROPOSED RULES Federal Mortgage Disclosure Requirements under the Truth in Lending Act, 54318-54387 2016-18426 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: NIOSH Center for Motor Vehicle Safety; Midcourse Review of Strategic Plan, 54094-54096 2016-19350 Statement of Organization, Functions, and Delegations of Authority, 54091-54094 2016-19302 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicaid Program: Disproportionate Share Hospital Payments; Treatment of Third Party Payers in Calculating Uncompensated Care Costs, 53980-53985 2016-19107 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National and Tribal Evaluation of the 2nd Generation of the Health Profession Opportunity Grants, 54096-54097 2016-19337 Coast Guard Coast Guard RULES Safety Zones: Apra Outer Harbor, Naval Base Guam, 53922-53924 2016-19372 PROPOSED RULES Commercial Fishing Vessels: Implementation of 2010 and 2012 Legislation, 53986 2016-19272 NOTICES Waterway Suitability Assessments: Expansion of Liquefied Natural Gas Facility; Ingleside, TX, 54107-54108 2016-19282 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54190-54216 2016-19268 Defense Department Defense Department See

Engineers Corps

See

Navy Department

RULES Public Affairs Liaison with Industry, 53922 2016-19345
Economic Development Economic Development Administration NOTICES Petitions for Firms for Determination of Eligibility to Apply for Trade Adjustment Assistance, 54041 2016-19288 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Race to the Top—Early Learning Challenge Annual Performance Report, 54051-54052 2016-19260 Applications for New Awards: Performance Partnership Pilots, 54056-54073 2016-19294 Federal Student Financial Assistance Programs: Experimental Sites Initiative, 54052-54056 2016-19297 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Workforce Information Grants to States, 54126-54127 2016-19399 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

RULES Energy Conservation Programs: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air-Conditioning and Heating Equipment and Commercial Warm Air Furnaces; Correction, 53907-53908 2016-19358 PROPOSED RULES Energy Conservation Programs: Standards for Portable Air Conditioners, 53961 2016-19356 Standards for Uninterruptible Power Supplies; Correction, 53962 2016-19102
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Meetings: Appliance Standards and Rulemaking Federal Advisory Committee, 54073-54074 2016-19362 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Springfield Supplemental Water Supply Project, 54050-54051 2016-19353 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Regional Haze Federal Implementation Plan; Partial Stay, 53929-53931 2016-19113 Iowa; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress Report, 53924-53926 2016-19041 New Hampshire; Control of Volatile Organic Compound Emissions from Minor Core Activities, 53926-53929 2016-19123 Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare, 54422-54475 2016-18399 Pesticide Tolerances: n-Butyl 3-hydroxybutyrate and Isopropyl 3-hydroxybutyrate; Exemption, 53931-53935 2016-19115 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: New Hampshire; Control of Volatile Organic Compound Emissions from Minor Core Activities, 53978 2016-19125 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: The Boeing Company Airplanes, 53908-53912 2016-18952 Class C Airspace; Amendments: Boise, ID, 53913-53914 2016-19243 Peoria, IL, 53915-53916 2016-19241 Syracuse Hancock International Airport, NY, 53912-53913 2016-19244 PROPOSED RULES Class D and E Airspace; Amendments: Eugene, OR; Corvallis, OR, 53962-53964 2016-19114 Class E Airspace; Amendments: Albany, OR, 53964-53965 2016-19116 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Automatic Dependent Surveillance Broadcast Rebate System, 54179-54181 2016-19427 Meetings: RTCA Special Committee 206, Plenary Aeronautical Information and Meteorological Data Link Services, 54177-54178 2016-19411 RTCA Special Committee 230 Airborne Weather Detection Systems; Joint with WG-95 Inflight Ice Long Range Awareness Systems, 54178 2016-19408 Special Committee 135, Environmental Conditions and Test Procedures for Airborne Equipment, 54181 2016-19409 Special Committee 216 Aeronautical Systems Security, 54178-54179 2016-19285 Federal Communications Federal Communications Commission PROPOSED RULES Petitions for Reconsideration and Clarification of Action in Rulemaking Proceeding: Correction, 54018 2016-19308 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54083-54085 2016-19307 2016-19382 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54190-54216 2016-19268 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations; Changes, 54109-54113 2016-19293 Major Disaster Declarations: Texas; Amendment No. 6, 54109 2016-19291 Texas; Amendment No. 7, 54109 2016-19286 Texas; Amendment No. 8, 54108-54109 2016-19292 Major Disasters and Related Determinations: Montana, 54108 2016-19287 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Chittenden Falls Hydropower, Inc., 54081 2016-19366 Cornell University, 54079-54080 2016-19365 Combined Filings, 54074-54075, 54082 2016-19327 2016-19364 2016-19369 Environmental Impact Statements; Availability, etc.: TransCameron Pipeline, LLC; Venture Global Calcasieu Pass, LLC, 54077-54079 2016-19370 Exempt Wholesale Generator Status: Beacon Solar 1, LLC; Rio Bravo Solar I, LLC; Wildwood Solar II, LLC; Marshall Solar, LLC; et al., 54076-54077 2016-19328 Filings: Avocent Corp., 54075-54076 2016-19367 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Cube Yadkin Generation LLC, 54080-54081 2016-19332 Freepoint Energy Solutions LLC, 54076 2016-19334 Kingman Wind Energy I, LLC, 54080 2016-19329 Kingman Wind Energy II, LLC, 54076 2016-19330 New Creek Wind LLC, 54074-54075 2016-19333 Solar Star California XLI, LLC, 54081-54082 2016-19331 Records Governing Off-the-Record Communications, 54082-54083 2016-19368 Federal Maritime Federal Maritime Commission PROPOSED RULES Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984, 53986-54018 2016-18805 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54190-54216 2016-19268 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 54085 2016-19283 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 54085 2016-19284 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54088-54091 2016-19226 Proposed Consent Agreements: Fortiline, LLC; Analysis to Aid Public Comment, 54085-54088 2016-19339 Federal Transit Federal Transit Administration NOTICES Funding Opportunities: Fiscal Year 2016 Safety Research and Demonstration Program, 54181-54187 2016-19391 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Headwater Chub and Distinct Population Segment of the Roundtail Chub, 54018-54019 2016-19340 NOTICES Endangered Species Permit Applications:, 54120-54122 2016-19290 Recovery Permit Applications: Endangered and Threatened Wildlife and Plants, 54119-54120 2016-19351 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Applications for FDA Approval to Market a New Drug: Patent Submission and Listing Requirements and Application of 30-month Stays on Approval of Abbreviated New Drug Applications Certifying That a Patent Claiming a Drug Is Invalid or Will Not Be Infringed, 54097-54099 2016-19385 Guidance: Premarket Notification Submissions for Bipolar Electrosurgical Vessel Sealers for General Surgery, 54102-54104 2016-19402 Premarket Notification Submissions for Electrosurgical Devices for General Surgery, 54100-54101 2016-19404 Meetings: Allergenic Products Advisory Committee, 54099-54100 2016-19338 Facilitating Anti-infective Drug Development for Neonates and Young Infants; Public Workshops, 54099 2016-19336 Requests for Nominations: Tobacco Products Scientific Advisory Committee, 54101-54102 2016-19312 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Subzone Expansion: Huntington Ingalls Industries, Subzone 92B, Foreign-Trade Zone 92, Gulfport, MS, 54041-54042 2016-19412 General Services General Services Administration PROPOSED RULES Federal Travel Regulations: Clarification of Payment In Kind for Speakers at Meetings and Similar Functions, 53979-53980 2016-18556 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

PROPOSED RULES Control of Communicable Diseases, 54230-54316 2016-18103 NOTICES Test Tools and Test Procedures Approved by the National Coordinator for the ONC Health IT Certification Program, 54105 2016-19203
Health Resources Health Resources and Services Administration NOTICES Deviations from Competition Requirements: National Center for Medical Home Implementation Cooperative Agreement; Single-Award, 54104-54105 2016-19347 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Alternative Inspections—Housing Choice Voucher Program, 54114 2016-19396 Energy Benchmarking; Withdrawal, 54119 2016-19405 FHA Technology Open to Approved Lenders Mortgage Scorecard, 54113-54114 2016-19403 Single Family Premium Collection Subsystem—Upfront, 54119 2016-19393 Community Development Block Grant Disaster Recovery Grant Program: Guidance, Waivers, and Alternative Requirements, 54114-54119 2016-19394 Interior Interior Department See

Fish and Wildlife Service

See

Ocean Energy Management Bureau

NOTICES Charter Renewals: U.S. Extractive Industries Transparency Initiative Advisory Committee, 54123 2016-19298 Meetings: U.S. Coral Reef Task Force, 54123 2016-19202
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Drawn Stainless Steel Sinks from the People's Republic of China, 54042-54043 2016-19264 Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan, 54043-54044 2016-19256 Xanthan Gum from the People's Republic of China, 54045-54047 2016-19410 Justice Department Justice Department PROPOSED RULES Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 53965-53978 2016-18957 NOTICES Proposed Consent Decrees under CERCLA, 54125-54126 2016-19335 Labor Department Labor Department See

Employment and Training Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cleanup Program for Accumulations of Coal and Float Coal Dusts, Loose Coal, and Other Combustibles, 54127-54128 2016-19398 Veterans' Employment and Training Service Competitive Grant Programs Reporting, 54128-54129 2016-19401
National Institute National Institutes of Health NOTICES Meetings: Eunice Kennedy Shriver National Institute of Child Health and Human Development, 54105-54107 2016-19277 2016-19278 National Heart, Lung, and Blood Institute, 54106-54107 2016-19275 National Institute on Alcohol Abuse and Alcoholism, 54106 2016-19276 National Institute on Drug Abuse, 54106 2016-19279 National Oceanic National Oceanic and Atmospheric Administration RULES Fish and Fish Product Import Provisions of the Marine Mammal Protection Act, 54390-54419 2016-19158 Fisheries of the Northeastern United States: Spiny Dogfish Fishery; 2016-2018 Specifications, 53958-53960 2016-19342 PROPOSED RULES List of Fisheries for 2017, 54019-54040 2016-19346 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54048-54049 2016-19289 2016-19392 Meetings: Fisheries of the South Atlantic Southeast Data, Assessment, and Review Data Best Practices Standing Panel Webinar, 54048-54049 2016-19357 Permits: Endangered Species; File No. 20339, 54047-54048 2016-19271 Marine Mammals; File No. 19706, 54049-54050 2016-19296 Navy Navy Department NOTICES Exclusive Patent Licenses: Grey Matter, LLC; Correction, 54051 2016-19348 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Exemptions: Southern Nuclear Operating Co.; Use of Optimized ZIRLO Fuel Rod Cladding Material; Farley Nuclear Plant, Units 1 and 2, and Vogtle Electric Generating Plant, Units 1 and 2, 54131-54133 2016-19363 High-Enriched Uranium Export License Applications, 54133-54134 2016-19360 Imposition of Penalties: Plus, LLC, 54129-54131 2016-19359 Ocean Energy Management Ocean Energy Management Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Oil Spill Financial Responsibility for Offshore Facilities, 54123-54125 2016-19310 Pension Benefit Pension Benefit Guaranty Corporation RULES Benefits Payable in Terminated Single-Employer Plans: Interest Assumptions for Paying Benefits, 53921-53922 2016-19295 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars, 53935-53957 2016-19406 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 54166 2016-19455 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 54134-54137 2016-19320 Bats EDGX Exchange, Inc., 54152-54154 2016-19324 BOX Options Exchange, LLC, 54147-54149 2016-19319 C2 Options Exchange, Inc., 54144-54146 2016-19313 Chicago Board Options Exchange, Inc., 54137-54139, 54173-54174 2016-19316 2016-19318 Depository Trust Co., 54170-54173 2016-19322 Investors Exchange LLC, 54140-54141, 54166-54170 2016-19314 2016-19315 Miami International Securities Exchange, LLC, 54162-54166 2016-19321 National Securities Clearing Corp., 54146-54147 2016-19326 New York Stock Exchange, LLC, 54149-54152 2016-19317 NYSE Arca, Inc., 54142-54144, 54155-54162 2016-19323 2016-19325 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2016-19274 54174-54175 2016-19280 Disaster Declarations: Montana, 54174 2016-19281 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54175-54176 2016-19259 Senior Executive Service Performance Review Board Membership, 54176-54177 2016-19361 State Department State Department NOTICES Delegations of Authority: Assistant Secretary of State for Educational and Cultural Affairs of the Functions and Authorities under the Protect and Preserve International Cultural Property Act, 54177 2016-19397 Semi-Annual Unified Agenda, 54177 2016-19395 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Transit Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Transportation Statistics Bureau

NOTICES Privacy Act; Systems of Records, 54187-54190 2016-19354
Transportation Statistics Transportation Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Passenger Origin-Destination Survey Report, 54190 2016-19352 Treasury Treasury Department See

Comptroller of the Currency

RULES Import Restrictions Imposed on Archaeological and Ethnological Material of Syria, 53916-53921 2016-19491
Customs U.S. Customs and Border Protection RULES Import Restrictions Imposed on Archaeological and Ethnological Material of Syria, 53916-53921 2016-19491 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Status of Loan Account—Foreclosure or Other Liquidation, 54226 2016-19300 Charter Renewals: Advisory Committees, 54226-54227 2016-19400 Funding Availabilities: Veterans Employment Pay for Success Grant Program, 54216-54226 2016-19304 Separate Parts In This Issue Part II Health and Human Services Department, 54230-54316 2016-18103 Part III Bureau of Consumer Financial Protection, 54318-54387 2016-18426 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 54390-54419 2016-19158 Part V Environmental Protection Agency, 54422-54475 2016-18399 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.

81 157 Monday, August 15, 2016 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket Numbers EERE-2013-BT-STD-0007 and EERE-2013-BT-STD-0021] RIN 1904-AC95 and 1904-AD11 Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air-Conditioning and Heating Equipment and Commercial Warm Air Furnaces; Correction AGENCY:

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

ACTION:

Final rule; technical correction.

SUMMARY:

On January 15, 2016, the U.S. Department of Energy (DOE) published a direct final rule in the Federal Register that amended the energy conservation standards for small, large, and very large air-cooled commercial package air conditioning and heating equipment and commercial warm air furnaces. This document corrects multiple editorial errors in that final rule.

DATES:

Effective: August 15, 2016.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: I. Background

On January 15, 2016, DOE's Office of Energy Efficiency and Renewable Energy published an energy conservation standards direct final rule (DFR) in the Federal Register titled, “Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air-Conditioning and Heating Equipment and Commercial Warm Air Furnaces” (“January 2016 DFR”). 81 FR 2420. Since the publication of that DFR, it has come to DOE's attention that, due to a technical oversight, certain portions of the regulatory text adopted in the January 2016 DFR for 10 CFR part 431 contained editorial errors.

As part of that DFR, DOE amended 10 CFR 431.97, which addresses energy conservation standards for commercial air conditioners and heat pumps. This correction addresses editorial errors in § 431.97(b) through (d). When DOE renumbered the tables in § 431.97(b), subsequent tables in that section were correctly renumbered, but all cross-references to those tables were not properly amended. In addition, when amending paragraph (c) in regards to table numbering, DOE inadvertently reverted to the introductory text from an earlier version of the CFR, prior to the effective dates of the July 21, 2015 and September 21, 2015 final rule and correction for energy conservation standards for packaged terminal air conditioners and heat pumps. 80 FR 43162; 80 FR 56894. In amending paragraph (b), DOE inadvertently removed a footnote to Table 2 that was established in the July 17, 2015, final rule regarding energy conservation standards and test procedures for commercial heating, air-conditioning, and water heating equipment. 80 FR 42614. Finally, in amending paragraph (b) to establish separate equipment classes for double-duct equipment (in Tables 5 and 6), DOE inadvertently omitted references to this equipment in one table heading (Table 1) and in one table (Table 6). In order to remedy these errors, DOE is issuing this technical correction. In some cases, DOE has removed the incorrect cross-references entirely, as the text is sufficiently clear without them.

II. Need for Correction

As published, the adopted energy conservation standards text may potentially result in confusion regarding which standards apply to which equipment.

Because this technical correction document would simply correct errors in the regulatory text without making substantive changes to the energy conservation standards, the changes addressed in this document are technical in nature. Accordingly, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue a separate notice to solicit public comment on the changes contained in this document. Issuing a separate notice to solicit public comment would be impracticable, unnecessary, and contrary to the public interest.

III. Procedural Requirements

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the January 2016 DFR remain unchanged for this technical correction. These determinations are set forth in the January 15, 2016 final rule. 81 FR 2420.

List of Subjects in 10 CFR Part 431

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

Issued in Washington, DC, on August 5, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

For the reasons stated in the preamble, DOE amends part 431 of chapter II of title 10, Code of Federal Regulations as set forth below:

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

42 U.S.C. 6291-6317.

2. Section 431.97 is amended: a. In paragraph (b): i. By revising the undesignated text after the Table 1 heading; ii. In Table 2, the fourth column, last row remove “October 29, 2003.” and add in its place “October 29, 2003.3”; iii. By adding note 3 to Table 2; iv. In Table 6, in the first column, by adding “, Double-Duct” after each instance of “(Air-Cooled”; b. In paragraph (c), in note 2 to Table 7, by removing “Table 6” and adding in its place “Table 8”; c. By revising paragraph (c) introductory text, excluding Tables 7 and 8; d. In paragraph (d)(1) by removing “Table 7 of”; e. In paragraph (d)(2) by removing “Table 8 of”; and f. In paragraph (d)(3) by removing “Table 9 of”.

The revisions read as follows:

§ 431.97 Energy efficiency standards and their compliance dates.

(b) * * *

Table 1 to § 431.97—Minimum Cooling Efficiency Standards for Air Conditioning and Heating Equipment [Not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, variable refrigerant flow multi-split air conditioners and heat pumps, and double-duct air-cooled commercial package air conditioning and heating equipment] *         *         *         *         *         *         * Table 2 to § 431.97—Minimum Heating Efficiency Standards for Air Conditioning and Heating Equipment [Heat Pumps] *         *         *         *         *         *         * Equipment type Cooling capacity Efficiency level Compliance date: Equipment manufactured
  • starting on . . .
  • *         *         *         *         *         *         * *         *         *         *         *         *         * 3 And manufactured before October 9, 2015. See Table 4 of this section for updated heating efficiency standards.

    (c) Each non-standard size packaged terminal air conditioner (PTAC) and packaged terminal heat pump (PTHP) manufactured on or after October 7, 2010 must meet the applicable minimum energy efficiency standard level(s) set forth in Table 7 of this section. Each standard size PTAC manufactured on or after October 8, 2012, and before January 1, 2017 must meet the applicable minimum energy efficiency standard level(s) set forth in Table 7 of this section. Each standard size PTHP manufactured on or after October 8, 2012 must meet the applicable minimum energy efficiency standard level(s) set forth in Table 7 of this section. Each standard size PTAC manufactured on or after January 1, 2017 must meet the applicable minimum energy efficiency standard level(s) set forth in Table 8 of this section.

    [FR Doc. 2016-19358 Filed 8-12-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8841; Directorate Identifier 2016-NM-115-AD; Amendment 39-18611; AD 2016-16-13] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2016-13-10, for certain The Boeing Company Model 737-300, -400, and -500 series airplanes. AD 2016-13-10 required repetitive external detailed inspections and nondestructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between station (STA) 400 and STA 460, and repair if necessary. AD 2016-13-10 also required a preventive modification of the fuselage skin at crown stringers S-1 and S-2R. This AD requires the same actions as AD 2016-13-10, and clarifies certain regulatory text. This AD was prompted by the determination that certain regulatory text in AD 2016-13-10 requires clarification. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

    DATES:

    This AD is effective August 15, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 9, 2016 (81 FR 43483, July 5, 2016).

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of July 23, 2012 (77 FR 36134, June 18, 2012).

    We must receive any comments on this AD by September 29, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2016-8841.

    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-2016-8841; 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 street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On June 21, 2016, we issued AD 2016-13-10, Amendment 39-18574 (81 FR 43483, July 5, 2016) (“AD 2016-13-10”), for certain The Boeing Company Model 737-300, -400, and -500 series airplanes. AD 2016-13-10 required repetitive external detailed inspections and nondestructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between STA 400 and STA 460, and repair if necessary. AD 2016-13-10 also required a preventive modification of the fuselage skin at crown stringers S-1 and S-2R. AD 2016-13-10 resulted from a determination that, for certain airplanes, the skin pockets adjacent to the Air Traffic Control (ATC) antenna are susceptible to widespread fatigue damage. We issued AD 2016-13-10 to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

    Actions Since AD 2016-13-10 Was Issued

    Since we issued AD 2016-13-10, we have determined that certain regulatory text in AD 2016-13-10 requires clarification:

    • We have revised paragraphs (h)(3) and (i) of this AD to refer to paragraph (l)(3) of this AD for the exception to the service information.

    • We have also removed the sentence from paragraph (h)(3) of AD 2016-13-10 that provided existing repair information and instead we have included existing repair information in the introductory text of paragraph (h) of this AD.

    • We have revised paragraph (j) of this AD to also refer to Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, for locations for the modification of the chem-mill steps.

    • We have revised paragraphs (j) and (l)(3) of this AD to refer to paragraph (n) of this AD for the appropriate procedures to request approval of an alternative method of compliance.

    We are issuing this AD to correct the unsafe condition on certain The Boeing Company Model 737-300, -400, and -500 series airplanes.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015. The service information describes procedures for repetitive external detailed inspections and non-destructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between STA 400 and STA 460, and repair of any cracking. The service information also describes procedures for a modification of the chem-mill steps at the locations identified, including related investigative actions and corrective actions, and repetitive post-mod inspections. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    AD Requirements

    This AD requires accomplishing the actions specified in the service information described previously.

    FAA's Justification and Determination of the Effective Date

    We are superseding AD 2016-13-10 to clarify certain regulatory text. We have made no other changes to the requirements published in AD 2016-13-10. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include Docket No. FAA-2016-8841; and Directorate Identifier 2016-NM-115-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

    Costs of Compliance

    We estimate that this AD affects 186 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Retained inspections from AD 2016-13-10 Between 7 and 15 work-hours × $85 per hour, depending on airplane configuration = between $595 and $1,275 per inspection cycle $0 Between $595 and $1,275 per inspection cycle Between $110,670 and $237,150 per inspection cycle. Retained modification from AD 2016-13-10 236 work-hours × $85 per hour = $20,060 (1) $20,060 $3,731,160. 1 We currently have no specific cost estimates associated with the parts necessary for the modification. We cannot determine the cost of the materials because the modification parts must be sized at the time the modification is installed, taking into account any existing repairs in the area.

    We have received no definitive data that enables us to provide a cost estimate for the on-condition actions specified in this 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

    This AD will not have federalism implications under Executive Order 13132. This AD will 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 that this AD:

    (1) Is not a “significant regulatory action” under Executive Order 12866,

    (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

    (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.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA 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 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2016-13-10, Amendment 39-18574 (81 FR 43483, July 5, 2016), and adding the following new AD: 2016-16-13 The Boeing Company: Amendment 39-18611; Docket No. FAA-2016-8841; Directorate Identifier 2016-NM-115-AD. (a) Effective Date

    This AD is effective August 15, 2016.

    (b) Affected ADs

    This AD replaces AD 2016-13-10, Amendment 39-18574 (81 FR 43483, July 5, 2016) (“AD 2016-13-10”).

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 737-300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015.

    (2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/BE866B732F6CF31086257B9700692796?OpenDocument&Highlight=st01219se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by reports of cracks found on the fuselage skin at the chem-mill steps, and the determination that, for certain airplanes, the skin pockets adjacent to the Air Traffic Control antenna are susceptible to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

    (f) Compliance

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

    (g) Retained Inspections With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2016-13-10, with no changes. At the applicable time specified in tables 1, 2, 3, and 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, except as required by paragraphs (l)(1) and (l)(2) of this AD: Do the actions specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, except as required by paragraph (l)(3) of this AD. Repeat the applicable inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015.

    (1) Do an external detailed inspection for cracking of the fuselage skin chem-mill steps.

    (2) Do an external non-destructive (medium frequency eddy current, magneto optical imaging, C-Scan, or ultrasonic phased array) inspection for cracking of the fuselage skin chem-mill steps.

    (h) Retained Repair With Clarification of Repair Information and Service Information Exception

    This paragraph restates the requirements of paragraph (h) of AD 2016-13-10, with clarification of repair information and service information exception. If any cracking is found during any inspection required by paragraph (g) of this AD, do the applicable actions specified in paragraph (h)(1), (h)(2),or (h)(3) of this AD. Installation of a repair prior to August 9, 2016 (the effective date of AD 2016-13-10) that meets the conditions specified in Part 9 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, terminates the inspections required by paragraph (g) of this AD for the area covered by that repair only. Installation of a repair prior to August 9, 2016, that meets the conditions specified in Part 9 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, covers all eight chem-mill step inspection areas between STA 410 and STA 450, and was done using a method approved in accordance with the procedures specified in paragraph (n) of this AD, terminates the inspections required by paragraph (g) of this AD for the area covered by that repair only, and terminates the preventive modification required by paragraph (i) of this AD.

    (1) Repair before further flight in accordance with Part 2 (for Group 1 airplanes) or Part 7 (for Group 2 airplanes) of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015; except as required by paragraph (l)(3) of this AD. Installation of a repair that meets the conditions specified in Note (a) of table 1, 2, 3, or 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, terminates the repetitive inspections required by paragraph (g) of this AD for the area covered by that repair only.

    (2) For Group 1 airplanes: Accomplishing the modification specified in paragraph (i) of this AD is a method of compliance with paragraph (h)(1) of this AD.

    (3) If any cracking is found in any area not covered by the preventive modification doubler during any inspection required by paragraph (g) of this AD: Repair before further flight, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, except as provided by paragraph (l)(3) of this AD. Installation of this repair terminates the repetitive inspections required by paragraph (g) of this AD for the area covered by that repair only.

    (i) Retained Preventive Modification With Clarification of Service Information Exception and Method of Compliance Procedures

    This paragraph restates the requirements of paragraph (i) of AD 2016-13-10, with clarification of service information exception and method of compliance procedures. For Group 1 airplanes: At the applicable time specified in tables 1, 2, and 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, except as required by paragraphs (l)(1) and (l)(2) of this AD, do a preventive modification of the fuselage skin at crown stringers S-1 and S-2R, including all applicable related investigative actions, in accordance with Part 9 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, except as provided by paragraph (l)(3) of this AD. Do all applicable related investigative actions concurrently with the modification. Installation of a preventive modification terminates the repetitive inspections required by paragraph (g) of this AD for the modified area only. Thereafter, repeat the inspections specified in Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015.

    (j) Retained Optional Modification With Clarification of Service Information

    This paragraph restates the requirements of paragraph (j) of AD 2016-13-10, with clarification of service information. Accomplishing a modification of the chem-mill steps at any location identified in Boeing Service Bulletin 737-53A1293, Revision 2, dated August 10, 2011; or Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015; using a method approved in accordance with the procedures specified in paragraph (n) of this AD, terminates the repetitive inspections required by paragraph (g) of this AD for the modified area only.

    (k) Retained Post-Repair/Post-Modification Inspections With No Changes

    This paragraph restates the requirements of paragraph (k) of AD 2016-13-10, with no changes. Tables 4 and 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specify post-repair/post-modification airworthiness limitation inspections in compliance with 14 CFR 25.571(a)(3) at the modified locations, which support compliance with 14 CFR 121.1109(c)(2) or 129.109(b)(2). As airworthiness limitations, these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an alternative method of compliance.

    (l) Retained Exceptions to Service Bulletin Specifications With Clarification of Method of Compliance Procedures

    This paragraph restates the requirements of paragraph (l) of AD 2016-13-10, With clarification of method of compliance procedures.

    (1) Where Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specifies a compliance time “after the Revision 3 date of this service bulletin,” this AD requires compliance within the specified compliance time after August 9, 2016 (the effective date of AD 2016-13-10).

    (2) Where the Condition column of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specifies a condition based on when an airplane has or has not been inspected, this AD bases the condition on whether an airplane has or has not been inspected on August 9, 2016 (the effective date of AD 2016-13-10).

    (3) Where Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specifies to contact Boeing for repair or preventive modification instructions: Before further flight, do the repair or preventive modification, as applicable, using a method approved in accordance with the procedures specified in paragraph (n) of this AD.

    (m) Retained Credit for Previous Actions With No Changes

    This paragraph restates the requirements of paragraph (m) of AD 2016-13-10, with no changes.

    (1) This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before July 23, 2012 (the effective date of AD 2012-12-04, Amendment 39-17093 (77 FR 36134, June 18, 2012) (“AD 2012-12-04”)), using Boeing Alert Service Bulletin 737-53A1293, Revision 1, dated July 7, 2010, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before August 9, 2016 (the effective date of AD 2016-13-10), using Boeing Service Bulletin 737-53A1293, Revision 2, dated August 10, 2011, which was incorporated by reference in AD 2012-12-04.

    (n) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (o)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation method must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) AMOCs approved for AD 2012-12-04 are approved as AMOCs for the corresponding provisions of this AD.

    (o) Related Information

    (1) For more information about this AD, contact Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(5) and (p)(6) of this AD.

    (p) 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 the AD specifies otherwise.

    (3) The following service information was approved for IBR on August 9, 2016 (81 FR 43483, July 5, 2016).

    (i) Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015.

    (ii) Reserved.

    (4) The following service information was approved for IBR on July 23, 2012 (77 FR 36134, June 18, 2012).

    (i) Boeing Service Bulletin 737-53A1293, Revision 2, dated August 10, 2011.

    (ii) Reserved.

    (5) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

    (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 August 4, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18952 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-3937; Airspace Docket No. 16-AWA-1] RIN 2120-AA66 Amendment of Class C Airspace; Syracuse Hancock International Airport, NY AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends the Syracuse Hancock International Airport, NY, Class C airspace by removing a cutout from the surface area that was incorporated to accommodate operations at an airport that has permanently closed.

    DATES:

    Effective date 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points and subsequent amendments can be viewed online at http://www.faa.gov/airtraffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    History

    On March 28, 2016, the FAA published in the Federal Register a notice proposing to remove a cutout from the description of the Syracuse Hancock International Airport, NY, Class C surface area (81 FR 17113), FR Doc. 2016-06833. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies the Syracuse Hancock International Airport Class C airspace area by removing a cutout from the Class C surface area. The cutout excluded the airspace within a 0.75-nautical mile radius of the former Michael Field/Onondaga Flight School Airport. The sole purpose of the exclusion was to allow aircraft to operate freely to and from the airport without the need to contact air traffic control. Since the former airport is now permanently closed, the purpose for the exclusion no longer exists; therefore, the FAA is removing the words “. . . excluding that airspace within a 0.75-mile radius of Michael Field/Onondaga Flight School Airport . . .;” as well as the words “Michael Field/Onondaga Flight School Airport, NY (lat. 43°10′45″ N., long. 76°07′29″ W.),” from the Class C airspace description.

    Class C airspace designations are published in paragraph 4000 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class C airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act, and its agency implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5a which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. Since this action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area, and only amends the Syracuse Hancock International Airport, NY, Class C airspace by removing a cutout from the Class C surface area that had been incorporated to accommodate operations at the former Michael Field/Onondaga Flight School Airport which is now permanently closed, this airspace action is not expected to cause any potentially significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 4000 Class C Airspace. AEA NY C Syracuse Hancock International Airport, NY Syracuse Hancock International Airport, NY (Lat. 43°06′40″ N., long. 76°06′23″ W.)

    That airspace extending upward from the surface to and including 4,400 feet MSL within a 5-mile radius of the Syracuse Hancock International Airport; and that airspace extending upward from 1,600 feet MSL to and including 4,400 feet MSL within a 10-mile radius of the Syracuse Hancock International Airport from the 248° bearing from the airport clockwise to the 118° bearing from the airport; and that airspace extending upward from 2,700 feet MSL to and including 4,400 feet MSL within a 10-mile radius from the 118° bearing from the airport clockwise to the 188° bearing from the airport; and that airspace extending upward from 2,300 feet MSL to and including 4,400 feet MSL within a 10-mile radius of the airport from the 188° bearing from the airport clockwise to the 248° bearing from the airport.

    Issued in Washington, DC, on August 8, 2016. Leslie M. Swann, Acting Manager, Airspace Policy Group.
    [FR Doc. 2016-19244 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-7467; Airspace Docket No. 16-AWA-2] RIN 2120-AA66 Amendment of Class C Airspace; Boise, ID AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies the Boise, ID, Class C airspace area by amending the legal description to contain the current Boise Air Terminal/Gowen Field airport name and updated airport reference point (ARP) information. This action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area.

    DATES:

    Effective date 0901 UTC, October 13, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the airport name and ARP geographic coordinates for the Boise Air Terminal/Gowen Field airport that is contained in the Boise, ID, Class C airspace description.

    History

    Class C airspace areas are designed to improve air safety by reducing the risk of midair collisions in high volume airport terminal areas and to enhance the management of air traffic operations in that area. During a biennial review of the Boise, ID, Class C airspace, the FAA identified that the airport's name and ARP geographic coordinates in the airspace legal description did not match the information in the FAA's aeronautical database. This action updates the airport name and ARP geographic coordinates to coincide with the FAA's aeronautical database information. There are no changes to routing or air traffic control procedures resulting from this action.

    Class C airspace designations are published in paragraph 4000 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class C airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Boise, ID, Class C airspace area description. The airport formerly known as “Boise Air Terminal” is renamed “Boise Air Terminal/Gowen Field” and the ARP geographic position for the airport is changed from “lat. 43°33′54″ N., long. 116°13′30″ W.” to “lat. 43°33′52″ N., long. 116°13′22″ W.” These amendments to the airport name and ARP geographic coordinates reflect the current information in the FAA's aeronautical database. Additionally, minor administrative edits to the legal description are made for clarity.

    This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act, and its agency implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5a which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. Since this action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area, and only amends the legal description to contain the current Boise Air Terminal/Gowen Field airport name and updated ARP information, this airspace action is not expected to cause any potentially significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 4000 Class C Airspace. ANM ID C Boise, ID [Amended] Boise Air Terminal/Gowen Field, ID (Lat. 43°33′52″ N., long. 116°13′22″ W.)

    That airspace extending upward from the surface to and including 6,900 feet MSL within a 5-mile radius of the Boise Air Terminal/Gowen Field; that airspace extending upward from 4,600 feet MSL to and including 6,900 feet MSL within a 10-mile radius of the Boise Air Terminal/Gowen Field from the 098° bearing from the airport clockwise to the 183° bearing from the airport; that airspace extending upward from 4,200 feet MSL to and including 6,900 feet MSL within a 10-mile radius of the Boise Air Terminal/Gowen Field from the 183° bearing from the airport clockwise to the 348° bearing from the airport; and that airspace extending upward from 5,200 feet MSL to and including 6,900 feet MSL within a 10-mile radius of the Boise Air Terminal/Gowen Field from the 348° bearing from the airport clockwise to the 008° bearing from the airport.

    Issued in Washington, DC, on August 8, 2016. Leslie M. Swann, Acting Manager, Airspace Policy Group.
    [FR Doc. 2016-19243 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-7416; Airspace Docket No. 16-AWA-5] RIN 2120-AA66 Amendment of Class C Airspace; Peoria, IL AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies the Peoria, General Downing-Peoria International Airport, IL, Class C airspace area by amending the legal description to contain the current airport name and updated airport reference point (ARP) information. This action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area.

    DATES:

    Effective date 0901 UTC, October 13, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783. The order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the airport name and ARP geographic coordinates for the General Downing-Peoria International Airport that is contained in the Peoria, IL, Class C airspace description.

    History

    Class C airspace areas are designed to improve air safety by reducing the risk of midair collisions in high volume airport terminal areas and to enhance the management of air traffic operations in that area. During a recent review of the Peoria, General Downing-Peoria International Airport, IL, Class C airspace area description, the FAA identified that the airport's name and ARP geographic coordinates were incorrect. This action updates the airport name and ARP geographic coordinates to coincide with the FAA's aeronautical database information. There are no changes to routing or air traffic control procedures resulting from this action.

    Class C airspace designations are published in paragraph 4000 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class C airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Peoria, IL, Class C airspace area description. The airport formerly known as “Greater Peoria Regional Airport” is renamed “General Downing-Peoria International Airport” and the ARP geographic position for the airport is changed from “lat. 40°39′53″ N., long. 89°41′30″ W.” to “lat. 40°39′51″ N., long. 89°41′36″ W.” These amendments to the airport name and ARP geographic coordinates reflect the current information in the FAA's aeronautical database. Additionally, minor administrative edits to the legal description were made for readability.

    This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act, and its agency implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5a, which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. Since this action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area, and only amends the legal description to contain the current airport name of Peoria, General Downing-Peoria International Airport, IL, and updated ARP information, this airspace action is not expected to cause any potentially significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 4000 Class C Airspace. AGL IL C Peoria, General Downing-Peoria International Airport, IL [Amended] General Downing-Peoria International Airport, IL (Lat. 40°39′51″ N., long. 89°41′36″ W.)

    That airspace extending upward from the surface to and including 4,700 feet MSL within a 5-mile radius of the General Downing-Peoria International Airport; that airspace extending upward from 2,000 feet MSL to and including 4,700 feet MSL within a 10-mile radius of the airport from the 284° bearing from the airport clockwise to the 154° bearing from the airport; and that airspace extending upward from 1,800 feet MSL to and including 4,700 feet MSL within a 10-mile radius of the airport from the 154° bearing from the airport clockwise to the 284° bearing from the airport.

    Issued in Washington, DC, on August 8, 2016. Leslie M. Swann, Acting Manager, Airspace Policy Group.
    [FR Doc. 2016-19241 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 12 [CBP Dec. 16-10] RIN 1515-AE14 Import Restrictions Imposed on Archaeological and Ethnological Material of Syria AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This document amends the U.S. Customs and Border Protection (CBP) regulations to reflect the imposition of import restrictions on archaeological and ethnological material of Syria pursuant to the Protect and Preserve International Cultural Property Act. This document also contains the Designated List of Archaeological and Ethnological Material of Syria that describes the types of objects or categories of archaeological or ethnological material that are subject to import restrictions, if unlawfully removed from Syria on or after March 15, 2011.

    DATES:

    Effective Date: August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Background

    United Nations Security Council Resolution 2199, adopted on February 12, 2015, condemns the destruction of cultural heritage in Syria, particularly by the terrorist organizations Islamic State in Iraq and the Levant (ISIL) and Al-Nusrah Front (ANF), and obligates all member nations to assist in the protection of Syria's cultural heritage. Paragraph 17 of the Resolution states that all Member States shall take appropriate steps to prevent the trade in Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Syria since March 15, 2011, including by prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the Syrian people. The United States strongly supported this Resolution because “this resolution both cuts off a source of ISIL revenue and helps protect an irreplaceable cultural heritage, of the region and of the world.” See “Explanation of Vote at a Security Council Session on Threats to International Peace and Security Caused by Terrorist Threats,” Ambassador Samantha Power, U.S. Permanent Representative to the United Nations, New York City, February 12, 2015.

    For decades, the United States has shared the international concern for the need to protect endangered cultural property. The appearance in the United States of stolen or illegally exported artifacts from other countries where there has been pillage has, on occasion, strained our foreign and cultural relations. This situation, combined with the concerns of museum, archaeological, and scholarly communities, was recognized by the President and Congress. It became apparent that it was in the national interest of the United States to join with other countries to suppress illegal trafficking of such objects in international commerce.

    The United States joined international efforts and actively participated in deliberations resulting in the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)). In 1983, pursuant to its international obligations arising under the 1970 UNESCO Convention, the United States enacted the Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq.) (CCPIA). Implementation of the 1970 UNESCO Convention through the CCPIA promotes U.S. leadership in achieving greater international cooperation toward preserving cultural treasures that are of importance to the nations from which they originate and greater international understanding of mankind's common heritage.

    Since 1983, import restrictions have been imposed on archaeological and ethnological material from a number of States Parties to the 1970 Convention. These restrictions have been imposed as a result of requests received from those nations under Article 9 of the 1970 UNESCO Convention and pursuant to provisions of the CCPIA that allow for emergency action and international agreements between the United States and other countries.

    Protect and Preserve International Cultural Property Act

    The Protect and Preserve International Cultural Property Act (Pub. L. 114-151) (“the Act”) directs the President to exercise the authority of the President under section 304 of the CCPIA (19 U.S.C. 2603) to impose import restrictions set forth in section 307 of the CCPIA (19 U.S.C. 2606) with respect to any archaeological or ethnological material of Syria not later than 90 days after the date of enactment of the Act, without regard to whether Syria is a State Party to the 1970 UNESCO Convention, and without the need for a formal request from the Government of Syria. Section 3(c) of the Act provides that the President is authorized to waive the import restrictions.

    On August 2, 2016, the Assistant Secretary for Educational and Cultural Affairs, Department of State, acting pursuant to delegated authority under the Act, made a Decision that, pursuant to the CCPIA, import restrictions be imposed with respect to any archaeological and ethnological material of Syria, as defined in the Act.

    More information on import restrictions may be obtained from the Cultural Property Protection section of the Department of State's Cultural Heritage Center Web site (http://culturalheritage.state.gov/). Importation of designated archaeological and ethnological material of Syria is restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met. Below is the Designated List of Archaeological and Ethnological Material of Syria that describes the types of objects or categories of archaeological or ethnological material that are subject to import restrictions, if unlawfully removed from Syria on or after March 15, 2011. This list was prepared in consultation with the Department of State pursuant to section 305 of the CCPIA (19 U.S.C. 2604).

    Designated List of Archaeological and Ethnological Material of Syria Table of Contents I. Stone II. Metal III. Ceramic, Clay, and Faience IV. Wood V. Glass VI. Ivory, Bone, and Shell VII. Plaster and Stucco VIII. Textile IX. Parchment, Paper, and Leather X. Painting and Drawing XI. Mosaic XII. Writing Chronology

    The archaeological and ethnological material of Syria represent the following periods and cultures: Paleolithic, Neolithic, Bronze and Iron Ages, Persian, Greco-Roman, Byzantine, and Islamic until the end of the Ottoman Period, a total span from roughly 1,000,000 BC to 1920 AD. Syria has been home to a range of diverse cultures, resulting in a vast array of archaeological and ethnological material in a variety of media. The import restriction covers all archaeological and ethnological material of Syria (as defined in section 302 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601)), including but not limited to the following types of material.

    I. Stone

    A. Sculpture

    1. Architectural elements, from temples, tombs, palaces, commemorative monuments, and domestic architecture, including columns, capitals, bases, lintels, jambs, friezes, pilasters, engaged columns, waterspouts, door leaves, mihrabs (prayer niches), fountains, and blocks from walls, floors, and ceilings. Often decorated in relief with pre-Classical (especially Neo-Hittite and Assyrian), Greco-Roman, Christian, and Islamic ornamental motifs and inscriptions. The most common architectural stones are limestone, basalt, and marble.

    2. Statues, large- and small-scale, often depicting human, mythological, and animal subjects, in a great variety of styles, including but not limited to Sumerian, Assyrian, Neo-Hittite, Hellenistic, Roman, Palmyrene, and Byzantine. The most popular stones are limestone, basalt, and marble, but other types of stone are used as well.

    3. Relief sculpture, large- and small-scale, including steles, wall slabs, plaques, coffins, altars, and tombstones, in a great variety of styles, including but not limited to Sumerian, Assyrian, Neo-Hittite, Hellenistic, Roman, Palmyrene, Byzantine, and Islamic. Used for commemorative, funerary, and decorative purposes. The most popular stones are limestone, basalt, and marble, but other types of stone are used as well.

    4. Inlay sculpture. Large-scale examples with friezes of sculpted stone figures set into an inlaid stone or bitumen background. Small-scale examples with flat, cut-out figures in light-colored stones set against dark stone or bitumen backgrounds decorate boxes and furniture. Subjects include narrative scenes such as warfare and banqueting.

    B. Seals

    1. Cylinder seals: A cylindrical bead, usually ranging in size from 2 cm to 8 cm in height, with a hole pierced through its vertical axis and engraved images carved around the outer circumference. Made from a great variety of stones, including but not limited to marble, serpentine, hematite, chalcedony, lapis lazuli, agate, jasper, turquoise, garnet, carnelian, agate, quartz, onyx, sardonyx, heliotrope, jasper, rock crystal, amethyst, and goethite.

    2. Stamp seals: Stones carved into animal or geometric shapes, including but not limited to square, circular, lentoid, hemispheric, gable-backed, eight-sided pyramidal, cones, cameos (carved in raised relief), ellipsoidal, and domical, with a flat surface engraved with a wide range of images. Some types have knobs on their top sides.

    C. Vessels and containers—Includes conventional shapes such as bowls, cups, and jars, and vessels having the form of animals.

    D. Tools and Weapons—Chipped stone (usually flint and obsidian) includes large and small blades, borers, scrapers, sickles, awls, harpoons, cores, and arrow heads. Ground stone types include mortars, pestles, millstones, querns, whetstones, choppers, axes, hammers, molds, loom weights, fishnet weights, standardized weights, and mace heads.

    E. Jewelry—Jewelry of or decorated with colored and semi-precious stones, including necklaces, pendants, cameos, crowns, earrings, finger rings, bracelets, anklets, belts, girdles, pins, hair ornaments, arm bands, and beads.

    F. Ostraca—Chips of stone used as surface for writing or drawing.

    G. Tablets—Inscribed with pictographic, cuneiform, Phoenician, Aramaic, Greek, Latin, and Arabic scripts.

    II. Metal

    A. Sculpture

    1. Statues, large- and small-scale, including of deities, humans (often standing, sometimes with raised arms and/or wearing helmets), and animals (such as lions), similar to those in stone. The most common materials are bronze and copper alloys, and gold and silver are used as well.

    2. Relief sculpture, including plaques and appliqués.

    B. Vessels and containers—Includes conventional shapes such as bowls, cups, jars, plates, platters, cauldrons, and lamps, and vessels in the form of humans, animals, hybrids, plants, and combinations or parts thereof. Decoration includes fluting, incision, appliqué, and figurative elements (such as mythological scenes, animals, festivities, and hunting). Examples include but are not limited to:

    • Shallow bronze bowls bearing concentric rings of complex imagery of animals, festivities, mythological scenes, and/or militaristic vignettes on their outside (they also occur in silver and gilt silver);

    • Large bronze cauldrons and cauldron stands, some of which include cast or incised decorations in the shape of bulls, griffins, or human heads;

    • Ewers with bulbous bodies, long necks and handles, dating to the Sasanian and Abbasid periods; and

    • Copper-alloy metalwork in the Islamic period engraved with inscriptions and elaborate floral and geometric designs, sometimes with enamel and silver inlays. Forms include bowls, ewers, candlesticks, and astrolabes.

    C. Objects of daily use

    1. Musical instruments, including trumpets, clappers, and sistra; furniture parts, such as chair legs, struts, and openwork panels, cast and hammered in copper/bronze; metal mirror backs, often incised with decoration.

    2. Copper/bronze weights found in a variety of shapes, including that of a recumbent lion.

    3. Architectural elements in copper/bronze, including door-pivots, knobs, and nails.

    D. Tools—Including but not limited to axes, adzes, saws, drills, chisels, knives, hooks, pins, needles, tongs, tweezers, awls, and scientific instruments such as astrolabes. Usually in bronze and copper alloys, later joined by iron; ceremonial forms might be in gold.

    E. Weapons and armor

    1. Weapons include maceheads, knives, swords, curved swords, axes (including duckbill and fenestrated types), arrows, and spears. Usually in bronze and copper alloys, later joined by iron and, by the 1st millennium AD, steel as well. Later swords may have inscriptions in Arabic on the blade and/or hilt. Ceremonial forms might be in gold. In the later Islamic periods, pistols and other firearms appear.

    2. Early armor consisting of small metal scales, originally sewn to a backing of cloth or leather, later augmented by helmets, body armor, shields, and horse armor. Armor and weapons of the Islamic period can be decorated with arabesque designs and inscriptions.

    F. Jewelry, amulets, and seals

    1. Jewelry of gold, silver, electrum, copper, and iron for personal adornment, including necklaces, pectorals, pendants in forms such as animals and insects, spirals, wire, arm bands, rosettes, hairpins, fibulae (triangular safety pins for garments), crowns and other headdresses, earrings, bracelets, anklets, belts, and finger rings.

    2. Amulets in the shape of humans, animals, hybrids, plants, and combinations or parts thereof.

    G. Liturgical objects—Including censers, crosses, chalices, Bible caskets, lamps, Kiddush cups, candelabra, and Torah pointers and finials.

    H. Tablets—Usually of copper-alloy, lead, gold, and silver, inscribed with cuneiform, Phoenician, Aramaic, Greek, Latin, and Arabic scripts.

    I. Coins—In copper or bronze, silver and gold.

    1. Coins in Syria have a long history and exist in great variety, spanning the Achaemenid Persian, Hellenistic Seleucid and Ptolemaic, Roman, Sasanian, and Islamic periods. Coins from neighboring regions circulated in Syria as well. Some major mints for coinage that circulated in Syria in various periods include Emesa, Antioch, Apamea, Damascus, Beroea, and Laodicea.

    2. Achaemenid coins include silver drachms stamped on the obverse with the head of the king and on the reverse with an altar.

    3. Coin types and materials for coins minted or circulated in Syria during the Hellenistic Seleucid and Ptolemaic periods include gold and silver staters and obols, bronze or silver drachms, hemidrachms, tetradrachms, and smaller bronze and lead coins. These coins have a wide variety of decorative elements. Male and female busts (of kings, such as Seleucus, and queens, such as Cleopatra, or sometimes deities) are usually found on the front. Seated archers, seated gods such as Zeus, winged Victory, Tyche, and Herakles, other Greco-Roman mythological subjects, animals such as lions and elephants, palm trees, and ships are usually on the reverse of the Seleucid and Ptolemaic coins, which are often inscribed in Greek.

    4. Roman coins minted and circulated in Syria during the Roman period come in a variety of denominations and weights and were struck primarily in silver and bronze, though examples (sesterces) of brass also appear. The front usually has an image of the emperor; sometimes, other notable personages (e.g., Julia Domna) might appear. Subjects shown on the reverse include seated and standing deities, wreaths, temples and altars, mythological scenes, and eagles. Inscriptions are usually in Latin, but sometimes also in Greek. Late Roman (Byzantine) coins are similar, but the reverse often shows Christian iconography (e.g., crosses), and inscriptions are in Greek.

    5. Sasanian period coins are typically silver drachms with an image of the ruler on the obverse and a religious scene with a fire altar on the reverse.

    6. Islamic coins are of gold, silver, bronze, and copper and include examples from the Ummayad, Abbasid, Ghaznavid, Fatimid, Ayyubid, Seljuq (including Zengid), Timurid, Mamluk, Safavid, and Ottoman periods. Most are stamped on both sides with inscriptions in Arabic, although a few types have an image on one side and an inscription on the other.

    III. Ceramic, Clay, and Faience

    A. Sculpture

    1. Terracotta figurines of humans and animals are quite common and may be highly stylized. Some examples are sculptures while others are made from molds. Also molds for making such figurines.

    2. Terracotta plaques, either made from molds or sculpted, with a variety of subjects. Also terracotta molds for making such plaques.

    3. Terracotta models, including furniture such as chairs and beds, chariots, boats, and buildings.

    B. Architectural decorations

    1. Bronze and Iron Age ceramic wall decorations, including cones (sometimes with the flat end painted) and decorated knobs.

    2. Islamic architectural ornaments, including carved and molded brick, and glazed ceramic tile wall and floor ornaments and panels.

    C. Vessels and containers

    1. Ceramic vessels occur throughout Syria's history in a wide range of shapes, sizes, fabrics, and decorative treatments. They may be handmade or wheel-made, plain or decorated with geometric, natural, or stylized motifs, with surfaces that include but are not limited to plain, slipped, burnished, varnished, painted, combed, incised, glazed, barbotine, and/or molded relief.

    2. All ceramics from the Ceramic Neolithic through the Ottoman Period. Examples include but are not limited to:

    • Decorated and undecorated Pre-Classical pottery, including Halaf, Ubaid, Uruk, and local and imported Bronze and Iron Age forms;

    • Greco-Roman pottery, including vessels with rilled decoration and terra sigillata, a high quality table ware made of red to reddish brown clay, and covered with a glossy slip;

    • Islamic plain, glazed, molded, and painted ceramics, including Raqqa wares and lusterware;

    • Bathtub, slipper-shaped, cylindrical, and rectangular coffins from all periods. Coffin lids may be modeled with human features; and

    • Pilgrim flasks from all periods, characterized by flat disc-shaped sides and a single drinking spout, often flanked by stirrup handles.

    D. Objects of daily use

    1. Including but not limited to game pieces, loom weights, toys, and lamps.

    2. Bread molds of various shapes and patterns.

    3. Stamp and cylinder seals made from fired clay, faience, or a composite material related to faience.

    E. Writing

    1. Tablets, covered with wedge-shaped cuneiform characters or incised pictographs. They are usually unbaked and must be handled with extreme care. Shapes range from very small rounded disk forms, to small square and rectangular pillow-shaped forms, to larger rectangular tablets. They sometimes are found with an enclosing clay envelope, which is also inscribed. Both tablets and envelopes may be impressed with cylinder or stamp seals.

    2. Bricks of fired clay inscribed or stamped with cuneiform inscriptions that are often placed in small frames on one of the sides. Approximately 30 × 30 × 10 cm.

    3. Cones of fired clay. The large end is sometimes flat, sometimes mushroom shaped. Inscribed cuneiform characters can cover the head and/or body of the cone. Approximately 15 cm long.

    4. Cylinders: Large cuneiform-inscribed objects can take the form of a multisided prism or barrel. The inscription typically covers all sides of the object. Approximately 20-30 cm high.

    5. Ostraca, pottery shards used as surface for writing or drawing.

    IV. Wood

    A. Architectural elements—Including carved and inlaid wooden walls, floors, panels, screens, balconies, stages, doors, ceilings, beams, altars, and vaulting and elements thereof (e.g., muqarnas), often decorated with stars, floral motifs, geometric patterns, religious iconography (e.g., crosses), and Arabic script. Elements may comprise most or all of entire rooms.

    B. Religious equipment—Including pulpits (minbars) and prayer niches (mihrabs), often intricately carved and with accompanying Arabic script decoration, and sometimes inlaid; book holders, lecterns, and cabinets; smaller objects such as cases/chests.

    C. Objects of daily use—Including furniture such as chairs, stools, and beds, chests and boxes, writing and painting equipment, musical instruments (e.g., ouds and rababa [fiddles]), utensils, and older game boxes and pieces.

    D. Tools and Weapons—Including adzes, axes, bow drills, carpenters' levels and squares, bows, arrows, spears.

    V. Glass

    A. Late Bronze Age and Iron Age glass containers, including but not limited to bowls, bottles, and juglets, typically small and often elaborately decorated with multi-colored bands.

    B. Roman vessels, often hand-blown, in a great variety of shapes, including but not limited to bottles, flasks, and pitchers.

    C. Islamic vessels and containers in glass in a great variety of shapes, including but not limited to bowls, bottles, flasks, and glass and enamel mosque lamps.

    VI. Ivory, Bone, and Shell

    A. Sculpture

    1. Ivory plaques sculpted in relief are a hallmark of Syrian sculpture. They were used in particular as parts of furniture; they may also have been components of tools/weapons and placed on walls as artistic elements. Decorative motifs include animals, humans, plants, combat, hunting, feasting, mythological creatures (e.g., griffins), and mythological and religious scenes, among others. In some periods, Syrian ivories may look Egyptian (“Egyptianizing”).

    2. Statuettes in the round of ivory, including human, animal, and mythological figures and parts thereof.

    B. Objects of daily use

    1. Ivory, bone, shell, and mother of pearl were used either alone or as inlays in luxury objects including furniture, chests and boxes (pyxis/pyxides), writing and painting equipment, musical instruments (e.g., flutes), games (e.g., dice), cosmetic containers, combs, jewelry, mirror backs and handles, amulets, fly whisk handles, and seals. Ivory objects from Islamic periods may have Arabic inscriptions.

    2. Utilitarian objects of bone and ivory include but are not limited to utensils and tools such as awls and needles.

    VII. Plaster and Stucco

    A. Plaster—Pre-Pottery Neolithic containers were often made of plaster. In later periods, painted or gilded plaster was used for jewelry and other objects in imitation of expensive materials.

    B. Stucco—Islamic architectural decorations in stucco, including vegetal forms and sculptures of humans and animals.

    VIII. Textile

    A. Greco-Roman and Byzantine textiles and fragments in linen, wool, cotton and silk, including but not limited to garments, blankets, bags, and hangings.

    B. Islamic textiles and fragments in wool, cotton, and silk, including garments, blankets, bags, hangings, and rugs.

    IX. Parchment, Paper, and Leather

    A. Parchment

    1. Manuscripts and portions thereof from the Byzantine and Early Islamic periods, including but not limited to liturgical works and Qur'ans, either on a scroll, single leaves, or bound as a book (or “codex”), and written in Aramaic, Greek, Latin, and Arabic, sometimes with painted illustrations and gold leaf, on specially prepared animal skins, known as parchment.

    2. Torahs and portions thereof: Scrolls bearing Hebrew writing in black ink, wound around two wooden rods, and originally housed in a cylindrical wooden case.

    B. Paper

    1. Qur'ans and manuscripts, and individual pages thereof, sometimes illustrated, written on paper and bound as books.

    2. Rare printed books.

    3. Religious, ceremonial, literary, and administrative material, including but not limited to maps, archival materials, photographs, and other rare or important documentary or historical material.

    C. Leather

    1. Armor, sandals, clothing, and horse trappings from the Islamic period.

    2. Early texts written on leather. Manuscripts and rare books bound in leather.

    X. Painting and Drawing

    A. Wall Painting—These are usually painted on lime plaster in the fresco method. Syrian wall paintings come from many periods and depict a wide range of subjects. They are found in both religious and secular buildings.

    1. Pre-classical paintings may show religious scenes, such as worshippers approaching standing and seated deities, sometimes with sacrificial animals, scenes with the ruler, mythological vignettes and creatures, and palm trees. Later paintings depict courtly and militaristic themes, as well as the ruler and high officials.

    2. Classical period paintings generally show biblical and religious scenes. Christian paintings may show personages such as Jesus, Virgin Mary, the apostles, and angels, and include iconography such as crosses. Jewish paintings may include iconography such as menorahs. Paintings from the Roman and other polytheistic traditions may depict deities such as winged Victory and mythological scenes. Christian wall paintings continue into the Byzantine period.

    3. Islamic period paintings may depict courtly themes (e.g., musicians, riders on horses) and city views, among other topics.

    B. Byzantine panel paintings (icons)—Generally portray Jesus, Mary, Christian saints, religious images, and scenes of biblical events. Surrounding paintings may contain animal, floral, or geometric designs, including borders and bands. May be partially covered with gold or silver, sometimes encrusted with semi-precious or precious stones, and are usually painted on a wooden panel, often for inclusion in a wooden screen (iconastasis). May also be painted on ceramic.

    XI. Mosaic

    A. Floor mosaics—Greco-Roman and Byzantine, including landscapes, humans or gods, mythological scenes, and quotidian activities such as hunting and fishing. There may also be vegetative, floral, or decorative motifs. They are made from stone cut into small pieces (tesserae) and laid into a plaster matrix.

    B. Wall and ceiling mosaics—generally portray religious images, scenes of Biblical and Qur'anic events, and views of cities and buildings. Surrounding panels may contain animal, floral, or geometric designs. Similar technique to floor mosaics, but may include tesserae of both stone and glass.

    XII. Writing

    On paper, parchment, leather, wood, ivory, stone, metal, textile, stucco, clay, mosaic, painting, and ceramic, in pictographic, cuneiform, Phoenician, Aramaic, Syriac, Hebrew, Greek, Latin, and Arabic scripts.

    Inapplicability of Notice and Delayed Effective Date

    Under section 553 of the Administrative Procedure Act (“APA”) (5 U.S.C. 553), agencies amending their regulations generally are required to publish a notice of proposed rulemaking in the Federal Register that solicits public comment on the proposed amendments, consider public comments in deciding on the final content of the final amendments, and publish the final amendments at least 30 days prior to their effective date. However, section 553(a)(1) of the APA provides that the standard prior notice and comment procedures do not apply to agency rulemaking that involves the foreign affairs function of the United States. CBP has determined that this final rule involves a foreign affairs function of the United States as it implements authority granted to the President under the Protect and Preserve International Cultural Property Act and section 304 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2603) to impose import restrictions on archaeological or ethnological material of Syria. The Protect and Preserve International Cultural Property Act and this rule do no more than carry out the obligations of the United States under the 1970 UNESCO Convention and Chapter VII of the United Nations Charter. Accordingly, the rulemaking requirements under the APA do not apply, and this final rule will be effective upon publication.

    In addition, section 553(b)(B) of the APA provides that notice and public procedure are not required when an agency for good cause finds them impracticable, unnecessary, or contrary to public interest. CBP has determined that providing prior notice and public procedure for these regulations would be impracticable, unnecessary, and contrary to the public interest because immediate action is necessary, and contemplated, in order to respond to the ongoing pillage of Syrian cultural antiquities and to avoid damage to those antiquities in Syria until hostilities have ceased. Any delay in this action will likely result in further damage to the Syrian cultural antiquities that Congress was seeking to protect with the Protect and Preserve International Cultural Property Act.

    Finally, section 553(d)(3) of the APA permits agencies to make a rule effective less than 30 days after publication when the agency finds that good cause exists for dispensing with a delayed effective date. For the reasons described above, CBP finds that good cause exists to make these regulations effective without a delayed effective date.

    Regulatory Flexibility Act

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

    Executive Order 12866

    CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 of September 30, 1993 (58 FR 51735, October 4, 1993), because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866.

    Signing Authority

    This regulation is being issued in accordance with 19 CFR 0.1(a)(1), pertaining to the Secretary of the Treasury's authority (or that of his/her delegate) to approve regulations related to customs revenue functions.

    List of Subjects in 19 CFR Part 12

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

    Amendment to CBP Regulations

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

    PART 12—SPECIAL CLASSES OF MERCHANDISE 1. The general authority citation for part 12 continues to read, and the specific authority for § 12.104k is added to read, as follows: Authority:

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

    Section 12.104k also issued under Pub. L. 114-151, 130 Stat. 369; 19 U.S.C. 2612;

    2. Add § 12.104k to read as follows:
    § 12.104k Emergency protection for Syrian cultural antiquities.

    (a) Restriction. Importation of archaeological or ethnological material of Syria is restricted pursuant to the Protect and Preserve International Cultural Property Act (Pub. L. 114-151) and section 304 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2603), unless a restriction is waived pursuant to section 3(c) of the Protect and Preserve International Cultural Property Act.

    (b) Description of restricted material. The term “archaeological or ethnological material of Syria” means cultural property as defined in section 302 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601) that is unlawfully removed from Syria on or after March 15, 2011. CBP Decision 16-10 sets forth the Designated List of Archaeological and Ethnological Material of Syria that describes the types of objects or categories of archaeological or ethnological material that are subject to import restrictions.

    R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection. Approved: August 11, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-19491 Filed 8-11-16; 4:15 pm] BILLING CODE 9111-14-P
    PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4022 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits AGENCY:

    Pension Benefit Guaranty Corporation.

    ACTION:

    Final rule.

    SUMMARY:

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

    DATES:

    Effective September 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Deborah C. Murphy ([email protected]), Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005, 202-326-4400 ext. 3451. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400 ext. 3451.)

    SUPPLEMENTARY INFORMATION:

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

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

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

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

    The September 2016 interest assumptions under the benefit payments regulation will be 0.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for August 2016, these interest assumptions are unchanged.

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

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

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

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

    List of Subjects in 29 CFR Part 4022

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

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

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

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

    2. In appendix B to part 4022, Rate Set 275, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 275 9-1-16 10-1-16 0.50 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 275, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 275 9-1-16 10-1-16 0.50 4.00 4.00 4.00 7 8
    Judith Starr, General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2016-19295 Filed 8-12-16; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 237a [Docket ID: DOD-2016-OS-0084] RIN 0790-AI94 Public Affairs Liaison With Industry AGENCY:

    Assistant to the Secretary of Defense for Public Affairs, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule removes regulations concerning Public Affairs liaison with industry. These Code of Federal Regulations (CFR) provisions are outdated and no longer accurate or applicable as written. The guidance, as revised, sets forth internal standards for how DoD employees should reach out and engage with industry. With respect to the visual information portion, it is essentially a collection and discussion of currently applicable intellectual property law that does not create any new public duties or obligations. Therefore, these regulations are removed from the CFR.

    DATES:

    This rule is effective on August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Patricia Toppings at 571-372-0485.

    SUPPLEMENTARY INFORMATION:

    This rule will be reported in future status updates as part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

    It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's issuance Web site. Once signed, a copy of DoD's internal guidance contained in DoD Instruction 5410.20 will be made available at http://www.dtic.mil/whs/directives/corres/pdf/541020p.pdf.

    List of Subjects in 32 CFR Part 237a

    Armed forces; Business and industry.

    PART 237a—[REMOVED]

    Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 237a is removed.

    Dated: August 9, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-19345 Filed 8-12-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0644] RIN 1625-AA00 Safety Zone; Apra Outer Harbor, Naval Base Guam AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for navigable waters of Apra Harbor, Guam in the vicinity of San Luis Beach, Sumay Cove and Commadores Cut. The safety zone is needed to protect personnel, vessels, and the marine environment from vessel operations in the area. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Guam.

    DATES:

    This rule is effective without actual notice from August 15, 2016 through 7 p.m. August 31, 2016. For the purposes of enforcement, actual notice will be used from 7 a.m. July 31, 2016 through August 15, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0644 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Chief Kristina Gauthier, Waterways Management, U.S. Coast Guard; telephone 671-355-4866, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this operation were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect vessels and waterway users from the hazards associated with the operation.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Guam has determined that potential hazards associated with vessel operations starting July 31, 2016 will be a safety concern for anyone in the vicinity of the operations. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during active vessel operations.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 7 a.m. on July 31, 2016 through 7 p.m. on August 31, 2016. The safety zone will cover all navigable waters in the vicinity of vessel operations to include waters off of San Luis Beach out 900 yards then across to Commadores Cut, down to the Navy Restricted area and along the shore line back to San Luis Beach, restricting access to Sumay Cove to Navy and Coast Guard operational responses. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the vessel operations are ongoing. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Apra Outer Harbor in Naval Base Guam for four days of the 32 day window and vessel traffic in this area is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 32 days with an expected enforcement of only 4 days that will prohibit entry of vessels to all navigable waters in the vicinity of vessel operations to include waters off of San Luis Beach out 900 yards then across to Commadores Cut, down to the Navy Restricted area and along the shore line back to San Luis Beach and restricting access to Sumay Cove to Navy and Coast Guard operational responses. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record-keeping requirements, Security measures, Waterways.

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

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

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

    2. Add § 165.T14-0644 to read as follows:
    § 165. T14-0644 Safety Zone; Apra Outer Harbor, Naval Base Guam.

    (a) Location. The following areas comprise a safety zone within the Guam Captain of the Port (COTP) Zone (See 33 CFR 3.70-15): All navigable waters bounded by an imaginary line starting at 13°26′34″ N., 144°38′44″ E. at San Luis Beach; thence 900 yards to 13°26′57″ N., 144°38′44″ E.; thence to 13°26′57″ N., 144°39′31″ E. across Commadores Cut; thence to 13°26′42″ N., 144°39′45″ E. at the Navy Restricted area; thence to 13°26′36″ N., 144°39′45″ E. at Guam Shipyard; and then along the shore line back to San Luis Beach, restricting access to Sumay Cove to Navy and Coast Guard operational responses. All coordinates are NAD 83.

    (b) Effective dates and enforcement period. This rule is effective without actual notice from August 15, 2016 through 7 p.m. August 31, 2016. For the purposes of enforcement, actual notice will be used from 7 a.m. July 31, 2016 through August 15, 2016 and this rule is enforced from the time vessel operations begin until they are completed.

    (c) Regulations. The general regulations governing safety zones contained in 33 CFR 165.23 apply. No vessels may enter or transit safety zone unless authorized by the COTP or a designated representative thereof.

    (d) Enforcement. Any Coast Guard commissioned, warrant, or petty officer, and any other COTP representative permitted by law, may enforce this temporary safety zone.

    (e) Waiver. The COTP may waive any of the requirements of this rule for any person, vessel or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security.

    (f) Penalties. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: July 14, 2016. James B. Pruett, Captain, U.S. Coast Guard, Captain of the Port, Guam.
    [FR Doc. 2016-19372 Filed 8-12-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2014-0365; FRL-9949-82-Region 7] Approval of Iowa's Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the Iowa State Implementation Plan (SIP) revision submitted to EPA by the State of Iowa on July 19, 2013, documenting that the State's existing plan is making adequate progress to achieve visibility goals by 2018. The Iowa SIP revision addressed the Regional Haze Rule (RHR) requirements under the Clean Air Act (CAA or Act) to submit a report describing progress in achieving reasonable progress goals (RPGs) to improve visibility in Federally designated areas in nearby states that may be affected by emissions from sources in Iowa. EPA is taking final action to approve Iowa's determination that the existing Regional Haze (RH) SIP is adequate to meet the visibility goals and requires no substantive revision at this time.

    DATES:

    This final rule is effective September 14, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2014-0365. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., 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 www.regulations.gov or at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours of business are Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. Summary of SIP Revision III. Final Action IV. Statutory and Executive Order Reviews I. Background

    On July 3, 2014, (79 FR 37976), EPA published a notice of proposed rulemaking (NPR) for the State of Iowa. In the NPR, EPA proposed approval of Iowa's progress report SIP, a report on progress made in the first implementation period towards RPGs for Class I areas that are affected by emissions from Iowa sources. This progress report SIP and accompanying cover letter also included a determination that Iowa's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018.

    On July 31, 2015, (80 FR 45631), EPA published a supplement to the NPR (SNPR) for the State of Iowa. In the SNPR, EPA addressed the potential effects on the NPR from the April 29, 2014, decision of the United States Supreme Court (Supreme Court) remanding to the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) EPA's Cross-State Air Pollution Rule (CSAPR) for further proceedings and the D.C. Circuit's decision to lift the stay of CSAPR. The supplemental notice provided clarity regarding how the court cases impacted Iowa's regional haze rule.

    States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions under 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing regional haze SIP. The first progress report SIP is due five years after submittal of the initial regional haze SIP. IDNR submitted its regional haze SIP on March 25, 2008, and submitted its progress report SIP revision on July 19, 2013. EPA finds that it satisfies the requirements of 40 CFR 51.308(g) and (h). No comments regarding the NPR or SNPR were received during the public comment period.

    II. Summary of SIP Revision

    On July 19, 2013, Iowa submitted a SIP revision describing the progress made toward the RPGs of Class I areas outside Iowa that are affected by emissions from Iowa's sources in accordance with requirements in the Regional Haze Rule.1 This progress report SIP also included an assessment of whether Iowa's existing regional haze SIP is sufficient to allow nearby states with Class I areas to achieve the reasonable progress goals by the end of the first planning period.

    1 EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713) known as the Regional Haze Rule. The Regional Haze Rule revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. See 40 CFR 51.308 and 51.309.

    The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. In the NPR, EPA proposed to approve the SIP as adequately addressing each element under 40 CFR 51.308(g). The seven elements and EPA's proposed conclusions in the NPR are briefly summarized below.

    The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the regional haze implementation plan; a summary of the emissions reductions achieved; an assessment of the visibility conditions for each Class I area in the state; an analysis of the changes in emissions from sources and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded visibility improvement progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the regional haze implementation plan to enable states to meet reasonable progress goals; and a review of the state's visibility monitoring strategy. As explained in detail in the NPR and the SNPR, EPA proposed Iowa's progress report SIP addressed each element and therefore satisfied the requirements under 40 CFR 51.308(g).

    In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP revision, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In its progress report SIP, Iowa determined that its regional haze SIP is sufficient to meet its obligations related to the reasonable progress goals for Class I areas affected by Iowa's sources. The State accordingly provided EPA with a negative declaration that further revision of the existing regional haze implementation plan was not needed at this time. See 40 CFR 51.308(h)(1). As explained in detail in the NPR and the SNPR, EPA proposed to determine that Iowa had adequately addressed 40 CFR 51.308(h) because the visibility data trends at the Class I areas impacted by Iowa's sources and the emissions trends of the largest emitters in Iowa of visibility-impairing pollutants both indicate that the reasonable progress goals for 2018 for these areas will be met or exceeded. Therefore, in our NPR and SNPR, EPA proposed to approve Iowa's progress report SIP as meeting the requirements of 40 CFR 51.308(g) and (h).

    III. Final Action

    EPA is taking final action to approve Iowa's regional haze five-year progress report and SIP revision, submitted July 19, 2013, as meeting the applicable regional haze requirements as set forth in 40 CFR 51.308(g) and 51.308 (h).

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: July 20, 2016. Mark Hague, Regional Administrator, Region 7.

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

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

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

    Subpart Q—Iowa 2. In § 52.820(e) the table is amended by adding and reserving entry (43), and by adding entry (44) in numerical order to read as follows:
    § 52.820 Identification of plan.

    (e) * * *

    EPA-Approved Iowa Nonregulatory Provisions Name of nonregulatory SIP provision Applicable geographic or
  • nonattainment area
  • State submittal date EPA approval date Explanation
    *         *         *         *         *         *         * (43) Reserved] (44) State Implementation Plan (SIP) Revision for the Attainment and Maintenance of National Ambient Air Quality Standards for Regional Haze (2013 Five-Year Progress Report) Statewide 7/19/13 8/15/16, [Insert Federal Register citation] [EPA-R07-OAR-2014-0365; FRL-9949-82-Region 7.
    [FR Doc. 2016-19041 Filed 8-12-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2012-0865; A-1-FRL-9950-60-Region 1] Air Plan Approval; NH; Control of Volatile Organic Compound Emissions From Minor Core Activities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire on October 4, 2012. The revision clarifies Reasonably Available Control Technology (RACT) requirements as they apply to minor core activities of volatile organic compound (VOC) sources. The intended effect of this action is to approve these requirements into the New Hampshire SIP. This action is being taken in accordance with the Clean Air Act.

    DATES:

    This direct final rule will be effective October 14, 2016, unless EPA receives adverse comments by September 14, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2012-0865 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    David L. Mackintosh, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, tel. 617-918-1584, fax 617-918-0668, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

    Organization of this document. The following outline is provided to aid in locating information in this preamble.

    I. What action is EPA taking? II. What is the background for this action? III. What is EPA's evaluation of New Hampshire's submittal? IV. Final Action V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. What action is EPA taking?

    EPA is approving, and incorporating into the New Hampshire SIP, revised sections of New Hampshire's Chapter Env-A 1200 “Volatile Organic Compounds (VOCs) Reasonably Available Control Technology (RACT),” submitted by the New Hampshire Department of Environmental Services (NH DES) to EPA as a SIP revision on October 4, 2012. Specifically, EPA is approving New Hampshire's revised Env-A 1201.04 “Exemptions: Conditions,” revised Env-A 1203.38 definition of “minor core activity,” and revised Env-A 1222.01 “Applicability Criteria for Miscellaneous and Multicategory Stationary VOC Sources.”

    II. What is the background for this action?

    EPA has established, and periodically reviews and revises, the National Ambient Air Quality Standard (NAAQS) for ground-level ozone. On March 27, 2008 (73 FR 16436), EPA published a final rule for a new 8-hour ozone standard of 0.075 parts per million (ppm). On May 21, 2012 (77 FR 30088), EPA designated areas for the 2008 ozone NAAQS and designated New Hampshire as Unclassifiable/Attainment for the 2008 ozone NAAQS. Subsequently, EPA revised the ozone NAAQS on October 26, 2015 (80 FR 65292). EPA has not yet, however, issued designations for the 2015 ozone NAAQS.

    New Hampshire is also part of the Ozone Transport Region (OTR) under Section 184(a) of the Clean Air Act (CAA). Sections 182(b)(2) and 184 of the CAA compel states with moderate and above ozone nonattainment areas, as well as areas in the OTR respectively, to submit a SIP revision requiring the implementation of RACT for sources covered by a Control Techniques Guideline (CTG) and for all major sources. A CTG is a document issued by EPA which establishes a “presumptive norm” for RACT for a specific VOC source category.

    III. What is EPA's evaluation of New Hampshire's submittal?

    EPA previously approved New Hampshire's Env-A 1200 on November 8, 2012 (77 FR 66921). New Hampshire's October 4, 2012 submittal includes revisions to three sections of this regulation.

    Revised Env-A 1201.04 extends by one year, from June 1, 2012 until May 31, 2013, the option for a source to voluntarily restrict their emissions to remain below the relevant applicability threshold and thus not be subject to certain requirements. Specifically, this option applies to newly regulated source categories added to Env-A 1200 on June 1, 2011. The process shall be exempt if the owner or operator files an application for a permit before May 31, 2013 and accepts an enforceable permit that limits emissions below the relevant applicability threshold and contains the necessary testing and recordkeeping and reporting requirements to demonstrate compliance.

    Revised Env-A 1203.38 clarifies the definition of “minor core activity” as any core activity at a stationary source for which the VOC emissions from processes and devices are less than the relevant RACT threshold and less than 5 tons per consecutive 12-month period. The interpretation of the definition did not change but rather the language was revised to make the definition clearer.

    Lastly, in revised Env-A 1222.01, a prior exemption for minor core activities has been removed. Previously, minor core activities with VOC emissions less than 5 tons per consecutive 12 month period were exempt from New Hampshire's Env-A 1222 emission control and recordkeeping requirements. In the revised regulations, minor core activities are considered in a source's applicability determination and thus, may be subject to the emission control and recordkeeping requirements in Env-A 1222.

    The three revisions discussed above serve to clarify the existing regulation and are not intended to significantly impact its original interpretation. New Hampshire's Env-A 1200 VOC RACT regulation remains consistent with the Clean Air Act and EPA guidance. Therefore, the revised provisions satisfy the anti-back sliding requirements in Section 110(l) of the CAA and EPA is approving these revised provisions into the New Hampshire SIP.

    IV. Final Action

    EPA is approving, and incorporating into the New Hampshire SIP, revised sections of New Hampshire's Chapter Env-A 1200, “Volatile Organic Compounds (VOCs) Reasonably Available Control Technology (RACT),” submitted on October 4, 2012. Specifically, EPA is approving New Hampshire's revised Env-A 1201.04 “Exemptions: Conditions,” revised Env-A 1203.38 definition of “minor core activity,” and revised Env-A 1222.01 “Applicability Criteria for Miscellaneous and Multicategory Stationary VOC Sources.”

    The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective October 14, 2016 without further notice unless the Agency receives relevant adverse comments by September 14, 2016.

    If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 14, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the State of New Hampshire regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov.

    VI. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: August 1, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart EE—New Hampshire 2. In § 52.1520(c), the table is amended by revising the entry for “Env-A 1200” to read as follows:
    § 52.1520 Identification of plan.

    (c) * * *

    EPA-Approved New Hampshire Regulations State citation Title/subject State effective date EPA approval date 1 Explanations *         *         *         *         *         *         * Env-A 1200 Volatile Organic Compounds (VOCs) Reasonably Available Control Technology (RACT) 6/1/2011 8/15/2016 [Insert Federal Register citation] Revised sections 1201.04, 1203.38, and 1222.01 approved in this action. *         *         *         *         *         *         * 1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
    [FR Doc. 2016-19123 Filed 8-12-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0846, FRL-9950-41-Region 9] Partial Stay; Arizona; Regional Haze Federal Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Partial stay.

    SUMMARY:

    The Environmental Protection Agency (EPA) is granting an administrative stay of specific provisions of the Arizona Regional Haze Federal Implementation Plan (FIP) applicable to the Phoenix Cement Company (PCC) Clarkdale Plant and the CalPortland Company (CPC) Rillito Plant under the Clean Air Act (CAA). In response to requests from PCC and CPC, we are staying the effectiveness of control technology optimization requirements for nitrogen oxides (NOX) applicable to Kiln 4 at the Clarkdale Plant and Kiln 4 at the Rillito Plant during the EPA's reconsideration of these requirements under CAA section 307(d)(7)(B) for a period of 90 days. Today's action reflects this stay in the Code of Federal Regulations.

    DATES:

    Effective August 15, 2016, 40 CFR 52.145(k)(6) and Appendix A to 40 CFR 52.145 are stayed until November 14, 2016. The addition of 40 CFR 52.145(n) in this rule is also effective from August 15, 2016 until November 14, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2015-0846. 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., confidential business information (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 electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Colleen McKaughan, U.S. EPA, Region 9, Air Division, Air-1, 75 Hawthorne Street, San Francisco, CA 94105. Colleen McKaughan can be reached at telephone number (520) 498-0118 and via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us,” and “our” refer to the EPA.

    Table of Contents I. Background II. Administrative Stay III. Statutory and Executive Order Reviews I. Background

    This section provides a brief overview of the background for today's action. Please refer to our proposed action on reconsideration for additional background.1 On September 3, 2014, the EPA promulgated a FIP addressing certain requirements of the CAA and the EPA's Regional Haze Rule for sources in Arizona.2 Among other things, the Arizona Regional Haze FIP includes NOX emission limits achievable with selective non-catalytic reduction (SNCR) applicable to Clarkdale Kiln 4 and Rillito Kiln 4. In particular, the EPA established two alternative emission limits for NOX on Clarkdale Kiln 4: A 2.12 lb/ton limit or an 810 tons/year limit. The lb/ton limit equates to the installation of a SNCR system, based on a 50 percent control efficiency, while the ton/year limit could be met either by installing SNCR or by maintaining recent production levels. We set an emission limit for NOX at Rillito Kiln 4 of 3.46 lb/ton, based on a 35 percent control efficiency. The FIP also includes monitoring, recordkeeping, and reporting requirements and a compliance deadline for the final NOX emission limits of December 31, 2018. Finally, in response to comments alleging that SNCR control efficiencies of 50 percent for Clarkdale Kiln 4 and 35 percent for Rillito Kiln 4 were unsupported and that SNCR was capable of achieving higher control efficiencies, we established requirements for control technology demonstrations (“optimization requirements”) for the SNCR systems at both kilns, which would entail the collection of data that then could be used to determine if a higher control efficiency was achievable.

    1 81 FR 42600 (June 30, 2016).

    2 79 FR 52420 (September 3, 2014)(Arizona Regional Haze “Phase 3” Rule).

    PCC and CPC each submitted a petition to the EPA on November 3, 2014, seeking administrative reconsideration and a partial stay of the final FIP under CAA section 307(d)(7)(B) and the Administrative Procedure Act (APA).3 In their petitions, both companies raised multiple objections to the optimization requirements in the FIP. CPC asserted that the requirements were burdensome, expensive, and unnecessary, given that CPC had already “evaluated fuels, fuel fineness, and the other characteristics listed in the Optimization Protocol” as part of its effort to reduce energy usage.4 PCC stated that the requirements “would be burdensome to implement” and “would substantially interfere with the cement manufacturing operations” at the Clarkdale Plant.5 PCC further asserted that requirements would harm the Salt River Pima-Maricopa Indian Community (SRPMIC), which relies on revenue from the Clarkdale Plant.6

    3 Letter from Verle C. Martz, PCC, to Regina McCarthy, EPA (November 3, 2014); Letter from Jay Grady, CPC, to Regina McCarthy, EPA (November 3, 2014).

    4 Letter from Jay Grady, CPC, to Regina McCarthy, EPA (November 3, 2014), attachment entitled “Petition of CalPortland Company for Partial Reconsideration and Request for Administrative Stay of EPA Final Rule, Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze and Interstate Visibility Transport Federal Implementation Plan Published at 79 FR 52420” at 4.

    5 Letter from Verle C. Martz, PCC, to Regina McCarthy, EPA (November 3, 2014) at 2.

    6 We note that while the Clarkdale Plant is tribally owned, it is not located on tribal land. It is subject to State jurisdiction and is regulated by ADEQ.

    The EPA sent letters to PCC and CPC on January 16, 2015 and January 27, 2015, respectively, granting reconsideration of the optimization requirements pursuant to CAA section 307(d)(7)(B).7 However, the EPA did not act on the companies' request for a stay of those requirements. On June 30, 2016, the EPA issued its proposed action on reconsideration, proposing to replace the optimization requirements for both kilns with a series of revised recordkeeping and reporting requirements.8

    7 Letter from Jared Blumenfeld, EPA, to Verle C. Martz, PCC (January 16, 2015); Letter from Jared Blumenfeld, EPA, to Jay Grady, CPC (January 27, 2015).

    8 81 FR 42600.

    II. Administrative Stay

    In light of the EPA's proposed rule to replace the optimization requirements applicable to Clarkdale Kiln 4 and Rillito Kiln 4 and the fact that these provisions require implementation of various operational adjustments and submittal of protocols and reports in advance of the December 31, 2018 compliance deadline for the NOX emission limits, the EPA is now granting PCC's and CPC's petitions for a stay of the effectiveness of those requirements under CAA section 307(d)(7)(B). In particular, we are staying the effectiveness of 40 CFR 52.145(k)(6) and Appendix A to 40 CFR 52.145 for a period of 90 days, which is the maximum length of a stay authorized under CAA section 307(d)(7)(B). The EPA anticipates that we will complete final action on reconsideration prior to the conclusion of this stay, but if we are unable to do so, we will consider granting a further stay of the optimization requirements under section 705 of the APA.

    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 exempt from review by the Office of Management and Budget (OMB) because it applies to only two facilities and is therefore not a rule of general applicability.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the provisions of the PRA, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

    C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to the APA but is subject to the CAA, which does not require notice and comment rulemaking to take this action.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The 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 in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

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

    This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action stays the effectiveness of optimization requirements that currently apply to the PCC Clarkdale Plant. The profits from the Clarkdale Plant are used to provide government services to SRPMIC's members.

    The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing our proposed action on reconsideration of the optimization requirements to permit them to have meaningful and timely input into its development.9

    9See Summary of Consultation with SRPMIC Regarding Regional Haze FIP Reconsideration (Docket ID No. EPA-R09-OAR-2015-0846-0026).

    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 has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of environmental protection for any affected populations.

    K. Congressional Review Act

    This rule is exempt from the CRA because it is a rule of particular applicability.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Visibility.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 1, 2016. Gina McCarthy, Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. Amend § 52.145 by adding paragraph (n) to read as follows:
    § 52.145 Visibility protection.

    (n) The effectiveness of paragraph (k)(6) of this section and Appendix A to this section is stayed from August 15, 2016 until November 14, 2016.

    [FR Doc. 2016-19113 Filed 8-12-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0719; FRL-9949-49] n-Butyl 3-hydroxybutyrate and Isopropyl 3-hydroxybutyrate; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes exemptions from the requirement of a tolerance for residues of n-butyl 3-hydroxybutyrate (CAS Reg. No. 53605-94-0) and isopropyl 3-hydroxybutyrate (CAS Reg. No. 54074-94-1) when used as inert ingredients (solvents) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest; to animals; and to food contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. Steptoe and Johnson, on behalf of Eastman Chemical Company, submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of these exemptions from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of n-butyl 3-hydroxybutyrate and isopropyl 3-hydroxybutyrate when applied or used under these conditions.

    DATES:

    This regulation is effective August 15, 2016. Objections and requests for hearings must be received on or before October 14, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0719, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0719 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 14, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0719, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of November 23, 2015 (80 FR 72941) (FRL-9936-73), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10841) by Steptoe and Johnson LLP (1330 Connecticut Avenue NW., Washington, DC 20036-1795) on behalf of the Eastman Chemical Company (200 South Wilcox Drive, Kingsport, TN 37660-5280). The petition requested that 40 CFR 180.910, 180.930, and 180.940 be amended to establish exemptions from the requirement of a tolerance for residues of n-butyl 3-hydroxybutyrate (CAS Reg. No. 53605-94-0); and isopropyl 3-hydroxybutyrate (CAS Reg. No. 54074-94-1) when used as inert ingredients (solvents) in pesticide formulations applied to pre- and post-harvest crops under 40 CFR 180.910; to animals under 40 CFR 180.930; and to food contact surface sanitizing solutions under 40 CFR 180.940(a). That document referenced a summary of the petition prepared by Steptoe and Johnson on behalf of Eastman Chemical Company, the petitioner, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit V.B.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for n-butyl 3-hydroxybutyrate and isopropyl 3-hydroxybutyrate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with n-butyl 3-hydroxybutyrate and isopropyl 3-hydroxybutyrate follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by n-butyl 3-hydroxybutyrate and isopropyl 3-hydroxybutyrate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate are structurally similar chemical entities differing only in one methyl group (CH3). Therefore the toxicity of these two chemicals is expected to be similar. Since there are no adequate data available for each one individually, the Agency utilizes read-across data to fill data gaps.

    n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate both exhibit very low levels of acute oral, dermal and inhalation toxicity each with LD50 values >5,000 mg/kg. n-Butyl-3-hydroxybutyrate is moderately irritating to the rabbit eye and is slightly irritating to rabbit skin. Isopropyl-3-hydroxybutyrate is not irritating to rabbit skin. n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate are not dermal sensitizers.

    In a 28-day subchronic feeding study in rats which included a reproduction/developmental screening assessment, exposure to isopropyl-3-hydroxybutyrate resulted in no adverse test item-related toxicological effects on clinical observations, no adverse effects seen in FOB assessments, no adverse effects on motor activity evaluations, no adverse effects seen in gross necropsy observations, male or female reproductive performance, or neurobehavioral parameters. The no-observed-adverse-effect-level (NOAEL) for reproductive toxicity was 1,000 mg/kg/day. The NOAEL for systemic toxicity was 1,000 mg/kg/day. In the absence of effects on the general physical condition of F1 pups, the NOAEL for neonatal toxicity was 1,000 mg/kg/day.

    n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate were negative in reverse gene mutation assays. Isopropyl-3-hydroxybutyrate was negative in a chromosome aberration assay and a gene mutation assay.

    There were no neurotoxicity or immunotoxicity studies available. However, there was no evidence of adverse neurotoxic effects noted during the FOB evaluations and the motor activity evaluations. There was no evidence of immunotoxicity in the available database.

    Based on the negative responses seen in the genotoxicity and lack of systemic toxicity in the reproductive and developmental screening study, n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate are considered unlikely to be carcinogenic.

    n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate both have a low solubility; therefore, it is unlikely that either material will be absorbed by the body and become systemically bioavailable. Both compounds are expected to hydrolyze quickly and completely in vivo, and the resulting hydrolysis products are very close in structure or are the same, depending on the specific hydrolysis product. The available in vitro data suggests that isopropyl-3-hydroxybutyrate can undergo fast hydrolysis by enzymes in the plasma and liver to produce n-butyl-3-hydroxybutyrate, which is perhaps further metabolized. Isopropyl-3-hydroxybutyrate concentration decreased from approximately 70 μM to below the limit of detection (<6.68 μM) in plasma within 2 hours and in rat liver S9 fraction within 30 minutes. Although stable in phosphate buffer, isopropyl-3-hydroxybutyrate concentration levels decreased from 70 μM to below the LOD within 30 minutes with ONLY slight increases in beta-hydroxybutyate levels indicating that either it is formed in small quantity (minor pathway) and/or rapidly metabolized and removed from the circulation.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    An acute effect was not found in the database therefore an acute dietary assessment is not necessary. In the 28-day subchronic oral toxicity study in rats with neurotoxicity measurements, no toxicity was observed at doses up to 1,000 mg/kg/day. Therefore, the Agency concluded that it is not necessary to conduct a quantitative risk assessment.

    C. Exposure Assessment

    1. Dietary exposure from food, feed uses and drinking water. In evaluating dietary exposure to n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate in food and drinking water as follows: Dietary exposure can occur from eating foods or ingesting drinking water containing residues of n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate. Because no hazard endpoint of concern was identified for the acute and chronic dietary assessment (food, feed and drinking water uses, a quantitative dietary exposure risk assessment was not conducted

    2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

    n-Butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate may be used in inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and round the home. However, since no endpoint of concern identified in the available database, it is not necessary to conduct a quantitative residential exposure assessment.

    3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate to share a common mechanism of toxicity with any other substances, and n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    As part of its qualitative assessment, EPA evaluated the available toxicity and exposure data on n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA considers the toxicity database to be sufficient to evaluate risk and has identified no residual uncertainty with regard to prenatal and postnatal toxicity or exposure. No hazard was identified based on the available studies; therefore, EPA concludes that there are no threshold effects of concern to infants, children, or adults from n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate. As a result, EPA concludes that no additional margin of exposure (safety) is necessary.

    E. Aggregate Risks and Determination of Safety

    Because no toxicological endpoints of concern were identified, EPA concludes that aggregate exposure to residues of n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate will not pose a risk to the U.S. population, including infants and children, and that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate residues.

    V. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate in or on any food commodities. EPA is not establishing a limitation on the amount of n-butyl-3-hydroxybutyrate and isopropyl-3-hydroxybutyrate that may be used in pesticide formulations applied to growing crops.

    B. Comments

    Two generic comments objecting to the use of chemicals in food were submitted to the docket for this action. Neither of the comments contained any specific information bearing on the Agency's safety finding for these chemicals. The Agency understands the commenters' concerns and recognizes that some individuals believe that pesticides should be banned on agricultural crops. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. The comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

    VI. Conclusions

    Therefore, exemptions from the requirement of a tolerance are established under 40 CFR 180.910, 40 CFR 180.930, and 40 CFR 180.940(a) for n-butyl-3-hydroxybutyrate (CAS Reg. No. 53605-94-0) and isopropyl-3-hydroxybutyrate (CAS Reg. No. 54074-94-1) when used as inert ingredients (solvents) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest (40 CFR 180.910); to animals (40 CFR 180.930); or to food contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils (40 CFR 180.940(a)).

    VII. Statutory and Executive Order Reviews

    This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: July 25, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.910, add alphabetically the inert ingredients to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * n-Butyl-3-hydroxybutyrate (CAS Reg. No. 53605-94-0) Solvent. *         *         *         *         *         *         * Isopropyl-3-hydroxybutyrate (CAS Reg. No. 54074-94-1) Solvent. *         *         *         *         *         *         *
    3. In § 180.930, add alphabetically the inert ingredients to the table to read as follows:
    § 180.930 Inert ingredients applied to animals; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * n-Butyl-3-hydroxybutyrate (CAS Reg. No. 53605-94-0) Solvent. *         *         *         *         *         *         * Isopropyl-3-hydroxybutyrate (CAS Reg. No. 54074-94-1) Solvent. *         *         *         *         *         *         *
    4. In § 180.940(a), add alphabetically the inert ingredients to the table in paragraph (a) to read as follows:
    § 180.940 Tolerance exemptions for active and inert ingredients for use in antimicrobial formulations (Food-contact surface sanitizing solutions).

    (a) * * *

    Pesticide chemical CAS Reg. No. Limits *         *         *         *         *         *         * n-Butyl-3-hydroxybutyrate 53605-94-0 Solvent. *         *         *         *         *         *         * Isopropyl-3-hydroxybutyrate 54074-94-1 Solvent. *         *         *         *         *         *         *
    [FR Doc. 2016-19115 Filed 8-12-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 173 and 179 [Docket No. PHMSA-2016-0011 (HM-251C)] RIN 2137-AF17 Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    The Pipeline and Hazardous Materials Safety Administration is issuing this final rule to codify in the Hazardous Materials Regulations certain mandates and minimum requirements of the FAST Act. Specifically, the FAST Act mandates a revised phase-out schedule for all DOT Specification 111 tank cars used to transport unrefined petroleum products (e.g., petroleum crude oil), ethanol, and other Class 3 flammable liquids. The FAST Act also requires that each tank car built to meet the DOT Specification 117 and each non-jacketed tank car retrofitted to meet the DOT Specification 117R be equipped with a thermal protection blanket that is at least 1/2-inch thick and meets existing thermal protection standards. Further, the FAST Act mandates minimum top fittings protection requirements for tank cars retrofitted to meet the DOT Specification 117R.

    DATES:

    Effective: August 15, 2016.

    ADDRESSES:

    Docket: You may view the public docket online at http://www.regulations.gov or in person at Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Michael Ciccarone, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    SUPPLEMENTARY INFORMATION:

    The FAST Act instructs the Secretary of Transportation to issue conforming regulatory amendments immediately or soon after the FAST Act's date of enactment (December 4, 2015). Because the actions taken in this final rule simply codify these non-discretionary statutory mandates, PHMSA finds that timely execution of agency functions would be impeded by the procedures of public notice that are normally required by the Administrative Procedure Act. Further, PHMSA sees no reason to delay regulatory action, as we are simply implementing the non-discretionary provisions contained in Sections 7304, 7305, and 7306 of the FAST Act. PHMSA finds that public notice is impracticable and is implementing these changes under the “good cause” exemption of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), thus amending the regulations without advance notice and opportunity for public comment.

    Abbreviations and Terms AAR Association of American Railroads APA Administrative Procedure Act CFR Code of Federal Regulations CPC Casualty Prevention Circular DOT Department of Transportation EA Environmental Assessment FAST Act Fixing America's Surface Transportation Act of 2015 FR Federal Register FRA Federal Railroad Administration HHFT High-Hazard Flammable Train HMR Hazardous Materials Regulations HMT Hazardous Materials Table NEPA National Environmental Policy Act NPRM Notice of Proposed Rulemaking NPV Net Present Value NTSB National Transportation Safety Board OMB Office of Management and Budget PG Packing Group PHMSA Pipeline and Hazardous Materials Safety Administration RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulation Identifier Number RSI Railway Supply Institute TDG Transportation of Dangerous Goods U.S.C. United States Code Table of Contents I. Background II. Good Cause Justification III. Section-by-Section Review IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Unfunded Mandates Reform Act of 1995 G. Paperwork Reduction Act H. Regulation Identifier Number (RIN) I. Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. Executive Order 13211 I. Background

    On May 8, 2015, PHMSA (also “we” or “us”), in consultation with the Federal Railroad Administration (FRA), published the final rule “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains” (hereafter “HM-251 final rule”). The HM-251 final rule was an integral part of the Department's comprehensive approach to ensure the safe transportation of energy products. Specifically, the HM-251 final rule amended the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) by defining certain trains transporting large volumes of Class 3 flammable liquids as “high-hazard flammable trains” (HHFT) and imposing certain operational restrictions, such as speed restrictions, braking systems, and routing.1 The HM-251 final rule also adopted requirements into the HMR for sampling and testing programs to ensure the proper classification of unrefined petroleum-based products transported under the HMR. Furthermore, the rule codified new tank car design standards—namely the DOT Specification 117 (DOT-117), DOT Specification 117P (DOT-117P), and DOT Specification 117R (DOT-117R)—and established a phase-out schedule for existing DOT Specification 111 (DOT-111) tank cars by requiring use of either a DOT-117, DOT-117P, or DOT-117R tank car by certain dates for the transport of Class 3 flammable liquids in an HHFT.2 For more information on the HM-251 final rule, please refer to its publication in the Federal Register [80 FR 26643; May 8, 2015], as well as the information under Docket No. PHMSA-2012-0082 at the Federal eRulemaking Portal, www.regulations.gov.

    1 The HM-251 final rule defined an HHFT as a train comprised of 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or 35 or more loaded tank cars of a Class 3 flammable liquid across the entire train.

    2 “DOT-117P” tank cars are newly manufactured tank cars or tank cars retrofitted to meet the performance criteria in § 179.202-12. “DOT-117R” tank cars are tank cars retrofitted to meet the retrofit standard in § 179.202-13.

    On December 4, 2015, President Barack Obama signed legislation entitled “Fixing America's Surface Transportation Act of 2015,” or the “FAST Act.” See Public Law 114-94. The FAST Act includes the “Hazardous Materials Transportation Safety Improvement Act of 2015” (see Sections 7001 through 7311) and instructs the Secretary of Transportation (hereafter “Secretary”) to make specific regulatory amendments to the tank car design standards and phase-out schedule codified in the HM-251 final rule.

    A. Retrofit Schedule (FAST Act Section 7304)

    Section 7304 of the FAST Act mandates a commodity-specific phase-out of all DOT-111 tank cars used to transport Class 3 flammable liquids. Specifically, paragraph (a) mandates the phase-out regardless of train composition and requires that, by the dates specified in paragraph (b), all tank cars used to transport Class 3 flammable liquids meet the DOT-117, DOT-117P, or DOT-117R requirements. Paragraph (b) of Section 7304 mandates a commodity-specific phase-out schedule for DOT-111 tank cars used to transport unrefined petroleum products and ethanol—irrespective of the Packing Group (PG) 3 assigned—as well as other Class 3 flammable liquids based on their PGs.

    3 Packing Group (as defined in 49 CFR 171.8) is a grouping according to the degree of danger presented by hazardous materials. Packing Group I indicates great danger; Packing Group II, medium danger; Packing Group III, minor danger.

    The phase-out schedule mandated in paragraph (b) outlines various compliance end-dates, on or after which the DOT-111 tank car (including DOT-111 tank cars built to the Association of American Railroads' (AAR) Casualty Prevention Circular 1232 standard (CPC-1232)) is no longer authorized to transport Class 3 flammable liquids. Please refer to Section III, “Section-by-Section Review,” in this rule for more information on the applicable end-dates of the new phase-out schedule. See Table 1 below for a comparison of the retrofit schedule of the HM-251 final rule with the schedule imposed by the FAST Act:

    4 Applies only to tank cars in an HHFT configuration.

    5 Applies to a single tank car containing the denoted commodity.

    6 If these cars are not retrofitted by January 1, 2017 the owners must file a report with the Department on the number of tank cars that they own that have been retrofitted and the number that have not yet been retrofitted.

    7 The FAST Act is applicable to “unrefined petroleum products in Class 3 flammable service, including crude oil.” For the purposes of this phase out table, we use “Crude” for these materials.

    Table 1—Comparison of HM-251 Tank Car Phase-out Schedule vs. FAST Act Phase-out Schedule [Tank cars in Class 3 flammable liquid service] Tank car type/service HM-251 phase-out deadline 4 FAST Act phase-out deadline 5 Non-jacketed DOT-111s PG I—January 1, 2018 6 Crude 7—January 1, 2018 PG II—May 1, 2023 Ethanol—May 1, 2023 PG III—May 1, 2025 Flammable PG I—May 1, 2025 ** Flammable PG II/III—May 1, 2029 * Jacketed DOT-111s PG I—March 1, 2018 Crude—March 1, 2018 PG II—May 1, 2023 Ethanol—May 1, 2023 PG III—May 1, 2025 Flammable PG I—May 1, 2025 ** Flammable PG II/III—May 1, 2029 * Non-jacketed CPC-1232s PG I—April 1, 2020 Crude—April 1, 2020 PG II—July 1, 2023 Ethanol—July 1, 2023 PG III—May 1, 2025 Flammable PG I—May 1, 2025 ** Flammable PG II/III—May 1, 2029 * Jacketed CPC-1232s May 1, 2025 Crude oil—May 1, 2025 Ethanol—May 1, 2025 Flammable PG I—May 1, 2025 ** Flammable PG II/III—May 1, 2029 * ** Extendable up to May 1, 2027, if the Secretary finds that insufficient retrofitting shop capacity will prevent the phase-out of tank cars not meeting the DOT-117, DOT-117P, or DOT-117R by the deadline. * Extendable up to May 1, 2031, if the Secretary finds that insufficient retrofitting shop capacity will prevent the phase-out of tank cars not meeting the DOT-117, DOT-117P, or DOT-117R by the deadline.

    The requirements of Section 7304 of the FAST Act differ from the HM-251 final rule in two ways. First, the HM-251 final rule required Class 3 flammable liquids to be transported in DOT-117, DOT-117P, or DOT-117R tank cars only if these tank cars are used in an HHFT, whereas the FAST Act removed the linkage between tank car specification and train composition, instead mandating that any Class 3 flammable liquid be transported in a DOT-117, DOT-117P, or DOT-117R tank car by the dates specified. (The FAST Act does not change the HM-251 final rule's definition of HHFT as it applies to the operational controls specified in the rule.) Second, the phase-out schedule in the HM-251 final rule was based on the PG of the Class 3 flammable liquid, among other factors, whereas the phase-out schedule imposed by the FAST Act is commodity-specific for unrefined petroleum products (including crude oil) and ethanol and based on a commodity's PG only for other Class 3 flammable liquids.

    Paragraph (d)(1)(A) of Section 7304 requires the Secretary to take immediate action to revise the date-specific deadlines in the HMR to align with those in the FAST Act. This rule responds to that mandate.

    B. Thermal Protection Blanket (FAST Act Section 7305)

    Section 7305 of the FAST Act requires tank cars built to meet the DOT-117 specification and each non-jacketed tank car retrofitted to meet the DOT-117R specification be equipped with an “insulating blanket” at least half inch thick and approved by the Secretary in accordance with 49 CFR 179.18(c). Paragraph (a) of § 179.18 requires tank cars required to be equipped with thermal protection to be equipped with a thermal protection system meeting a certain performance standard (i.e., a pool fire for 100 minutes; and a torch fire for 30 minutes) and paragraph (b) contains the technical requirements for conducting a thermal analysis to verify a system's compliance with paragraph (a)'s performance standard. As paragraph (c) of § 179.18 indicates, the Department maintains a list of thermal protection systems already verified to meet the performance standard and for which completion of a thermal analysis is not required. PHMSA maintains the list and for a thermal protection system to be added to the list, a manufacturer must first conduct the qualification tests in Appendix B to Part 179 of the HMR. The manufacturer must then provide the test procedures and results to PHMSA, which in consultation with FRA reviews the submitted test procedures and results. If the agencies find that the tests and results demonstrate that the system meets the performance standard of paragraph (a), the thermal protection system is added to the referenced list of tank car thermal protection systems that do not require test verification.

    PHMSA notes, that while the FAST Act refers to the blanket as an “insulating blanket,” for the purposes of clarity within the HMR, PHMSA is using the term “thermal protection blanket.” The FAST Act intends for the blanket to be designed and approved to withstand fire conditions as opposed to being “insulating material” that is designed solely to maintain the temperature of the lading during transportation and neither designed nor approved to withstand fire conditions.

    The HM-251 final rule did not specifically require that these tank car specifications include a thermal protection blanket as part of the thermal protection system; rather, it required that the specification tank cars meet the performance standard specified in § 179.18 of the HMR, which requires that a tank car have sufficient thermal resistance so that there will be no release of tank car lading, except through the pressure relief device, when subjected to a pool fire for 100 minutes and a torch fire for 30 minutes. Section 179.18 does not require the use of a thermal protection blanket for a tank car that is required to be equipped with thermal protection, nor does it prohibit their usage, provided the thermal protection blanket meets the section's performance requirement. In drafting the HM-251 final rule, PHMSA and FRA projected that a thermal protection blanket would be the likely option chosen for a DOT-117 tank car to comply with the thermal protection requirement, and the use of thermal protection blankets is consistent with the HM-251 Regulatory Impact Analysis (RIA), which assumed the thermal blanket would be the method used to achieve the thermal protection requirements in 179.18.8 Although PHMSA and FRA acknowledged that new alternate technologies to thermal protection blankets may become available for meeting the performance requirement of that rule, the analysis projected that thermal protection blankets would be the technology of choice and included their cost, along with the removal and replacement of jackets (for jacketed DOT-111 cars), in the retrofit costs.

    8See HM-251 Final Rule RIA, p. 172-173.

    The FAST Act takes a slightly different approach and instructs the Secretary to require a thermal protection blanket of at least 1/2-inch-thick material on both cars built to meet the DOT-117 standard and non-jacketed DOT-117R cars. This constitutes a prescriptive standard for a thermal protection blanket that meets the performance standard specified in § 179.18. This rule implements this statutory requirement in conformance with the FAST Act; therefore, a thermal protection blanket meeting § 179.18(c) is now a requirement for the DOT-117, as well as for the DOT-117R if the tank car undergoing retrofitting is non-jacketed.

    Paragraph (a) of Section 7305 requires the Secretary to amend the HMR to reflect these thermal protection requirements within 180 days of the FAST Act's enactment. This rule responds to that mandate.

    C. Top Fittings Protection (FAST Act Section 7306)

    Section 7306(a) of the FAST Act specifies minimum requirements for top fittings protection on tank cars built to meet the DOT-117R. The HM-251 final rule did not require top fittings protection as part of the DOT-117R retrofit requirement because the costs involved appeared to be greater than the expected safety benefits.9 PHMSA noted in the preamble to the HM-251 final rule that a task force of the AAR Tank Car Committee was evaluating potential advancements in existing top fittings protections that could prove cost effective and, along with the FRA, urged industry to consider enhancements that would apply to both new and retrofitted tank cars.

    9See HM-251 Final Rule, 80 FR at 26676.

    The FAST Act outlines self-executing performance standards for protective housings and pressure relief valves and does not mandate a rulemaking for these requirements. However, the statutory language mandates minimum requirements for top fittings protections for the DOT-117R tank car not currently in the HMR. Codifying these statutorily-mandated minimum requirements in the HMR provides greater clarity for the regulated community and ensures that the HMR is consistent with the FAST Act.

    D. International Harmonization

    As a result of the FAST Act, the U.S. retrofit schedule for DOT-111 tank cars is more closely aligned with the schedule that Transport Canada has set.10 Prior to the FAST Act, certain differences existed between the tank car provisions of the HMR and Transport Canada's corresponding Transportation of Dangerous Goods (TDG) Regulations. Specifically, in the HM-251 final rule, the U.S. retrofit schedule was based on several factors, including the Class 3 flammable liquid's PG assignment and tank car construction (e.g., whether the tank car is jacketed or non-jacketed). However, the HM-251 final rule was not commodity-specific; the applicable phase-out date for DOT-111 tank cars transporting crude oil or ethanol in an HHFT could vary significantly depending on the material's PG assignment. For example, under the HM-251 final rule, tank cars transporting PG I crude oil in an HHFT would need to be retrofitted or newly manufactured DOT-117R, DOT-117P, or DOT-117 tank cars at an earlier date than tank cars in an HHFT transporting crude oil assigned to PG II or PG III. Moreover, per the HM-251 final rule, a train transporting crude oil or ethanol but not meeting the definition of an HHFT is not required to utilize retrofitted or newly manufactured tank cars conforming to the DOT-117R, DOT-117P, or DOT-117.

    10 Transport Canada is the Canadian equivalent of DOT, with broad oversight authority for all modes of transportation, including the rail transportation of hazardous materials.

    Conversely, Transport Canada implemented a phase-out schedule that was commodity-specific (in addition to consideration of tank car design factors). The TDG Regulations mandate that flammable liquid commodities identified as crude oil or ethanol cannot be transported in a TC/DOT-111 in accordance with Canada's phase-out schedule, irrespective of PG assignment. For example, in order to be used to transport crude oil, TDG Regulations require retrofit of a non-jacketed TC/DOT-111 tank car by Canada's first compliance date (May 1, 2017), regardless of the crude oil's PG assignment. Furthermore, under the TDG Regulations, the TC/DOT-117 applies to a single tank car. Transport Canada's TDG Regulations do not include a definition for an HHFT.

    As mandated by the FAST Act, in this final rule, PHMSA is implementing a commodity-specific phase-out schedule for the transport of unrefined petroleum products and ethanol in DOT-111 tanks cars, irrespective of the PG assigned. Moreover, the FAST Act mandates the complete phase out of DOT-111 cars for flammable liquids, as opposed to just tank cars transported in HHFTs. Therefore, with respect to being commodity-specific and the applicability of the new standards to a single tank car, this final rule amends the HMR to further align with Transport Canada's corresponding TDG Regulations. There are, however, still some differences between the HMR and TDG Regulations related to tank car standards and the retrofit schedule. For additional discussion of international harmonization issues, please refer to Subsection K, “Executive Order 13609 and International Trade Analysis.”

    II. Good Cause Justification

    PHMSA is issuing this final rule without an opportunity for public notice and comment as is normally provided under the Administrative Procedure Act (APA), 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds good cause that they are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). In this instance, PHMSA finds that there is good cause to dispense with notice and comment because it would be impracticable and unnecessary.

    “Good cause” exists in impracticable situations when notice unavoidably prevents due and required execution of agency functions or when an agency finds that due and timely execution of its functions would be impeded by the notice otherwise required by the APA. The FAST Act requirements covered in this rulemaking are all non-discretionary, and two of the three FAST Act sections addressed in this rulemaking are self-executing (see Sections 7304 and 7306). PHMSA's actions in this final rule merely codify in the HMR these FAST Act requirements based on the authority of the Secretary to implement the statute.11 This final rule addresses congressional mandates that lay out specific requirements or instruct the Secretary to issue conforming regulatory amendments immediately or soon after the FAST Act's date of enactment. Given the statute's timeline for issuing conforming regulations, PHMSA finds that due and timely execution of agency functions would be impeded by the process of public notice and comment. As such, notice and comment procedures are “impracticable” within the meaning of the APA, 5 U.S.C. 553(b)(3)(B). Furthermore, in making these ministerial and technical amendments PHMSA is not exercising discretion in a way that could be informed by public comment. The FAST Act does not provide PHMSA the flexibility to withdraw, change or revise this rule in response to adverse public comment. As such, notice and comment procedures are “unnecessary” within the meaning of the APA, 5 U.S.C. 553(b)(3)(B).

    11 The Secretary has delegated this authority to PHMSA. See 49 CFR 1.97.

    This final rule is effective on the day of publication in the Federal Register. The APA requires agencies to delay the effective date of regulations for 30 days after publication, unless the agency finds good cause to make the regulations effective sooner. See 5 U.S.C. 553(d). In addition to the previously discussed good cause to publish this rulemaking without advance notice and opportunity for public comment to implement the specific and non-discretionary mandates of the FAST Act, PHMSA finds good cause to make the regulations effective prior to 30 days.

    The DOT Regulatory Policies and Procedures [44 FR 11034; February 26, 1979] provide that, to the maximum extent possible, DOT operating administrations should provide an opportunity for public comment on regulations issued without prior notice. Per the criteria specified in this policy, PHMSA finds that providing an opportunity for public comment cannot reasonably be anticipated to result in the receipt of useful information. This rule simply implements certain non-discretionary measures of the FAST Act; therefore, PHMSA is unable to adjust the text of the rule to account for any public comment. Section 7304 (expanding the tank car requirements to all flammable liquids) and Section 7306 (requiring top fittings protection) are self-executing and do not technically require regulatory action; Section 7304 (adjusting the retrofit timeline) is non-discretionary and required immediately; and Section 7305 (requiring 1/2 inch thermal protection) is non-discretionary and required no later than 180 days from the FAST Act's enactment. Further, due to the non-discretionary nature of Sections 7304, 7305, and 7306 of the FAST Act, PHMSA is without authority to withdraw, change or revise this rule in response to adverse public comment. For these reasons, PHMSA is not providing an opportunity for public comment.

    III. Section-by-Section Review Part 173 Section 173.241

    Section 173.241 provides the bulk packaging requirements for certain low hazard (i.e., PG III) liquid and solid materials. Specifically, paragraph (a) provides the specifications of rail tank cars that may be used to transport hazardous materials when directed to this section by Column (8C) of the § 172.101 Hazardous Materials Table (HMT). To execute the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars (including CPC-1232 tank cars) for Class 3 (flammable liquid) material in PG III, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT-117R retrofit standard. The phase-out must occur by the date in Table 2:

    Table 2—Phase-Out Schedule for DOT-111 Tank Cars in Class 3, PG III Service * Material Jacketed or non-jacketed tank car DOT-111 (including cars built to the CPC-1232 standard) not authorized on or after Class 3, PG III (flammable liquid) material Jacketed and Non-jacketed May 1, 2029. * Note: For unrefined petroleum products and ethanol, see Tables 3 and 4 below, as applicable. Section 173.242

    Section 173.242 provides the bulk packaging requirements for certain medium hazard (i.e., PG II and III) liquid and solid materials. Specifically, paragraph (a) provides which specifications of rail tank cars may be used to transport hazardous materials when directed to this section by Column (8C) of the § 172.101 HMT. Consistent with the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars for Class 3 (flammable liquids) in PG II and III, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT-117R retrofit standard. The phase-out must occur by the dates in Table 3 according to material type and tank car design factors:

    Table 3—Phase-Out Schedule for DOT-111 Tank Cars in Class 3, PG II and III Service Material Jacketed or non-jacketed tank car DOT-111 Not authorized on or after DOT-111 Built to
  • CPC-1232 not
  • authorized on or after
  • Unrefined petroleum products (e.g., crude oil)12 Non-jacketed January 1, 2018 April 1, 2020. Jacketed March 1, 2018 May 1, 2025. Ethanol Non-jacketed May 1, 2023 July 1, 2023. Jacketed May 1, 2023 May 1, 2025. Other Class 3, PG II and III (flammable liquid) material (other than unrefined petroleum products or ethanol) Jacketed and Non-jacketed May 1, 2029 May 1, 2029.
    Section 173.243

    Section 173.243 provides the bulk packaging requirements for certain high hazard (i.e., PG I) liquids and dual hazard materials. Specifically, paragraph (a) provides which specifications of rail tank cars may be used to transport hazardous materials when directed to this section by Column (8C) of the § 172.101 HMT. Consistent with the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars for Class 3 (flammable liquids) in PG I, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT-117R retrofit standard. The phase-out must occur by the dates in Table 4 according to material type and tank car design factors:

    12 Unrefined petroleum products refers to hazardous hydrocarbons that are extracted from the earth and have not yet been processed to such an extent that the properties of the product are known and consistent.

    Table 4—Phase-out Schedule for DOT-111 Tank Cars in Class 3, PG I Service Material Jacketed or non-jacketed tank car DOT-111 Not authorized on or after DOT-111 Built to
  • CPC-1232 not
  • authorized on or after
  • Unrefined petroleum products (e.g., crude oil) Non-jacketed January 1, 2018 April 1, 2020. Jacketed March 1, 2018 May 1, 2025. Class 3, PG I (flammable liquid) (other than unrefined petroleum products) Jacketed and Non-jacketed May 1, 2025 May 1, 2025.
    Part 179 Section 179.202-6

    Section 179.202-6 requires a tank car built to meet the DOT-117 to have a thermal protection system. Consistent with the mandate in Section 7305 of the FAST Act, in this final rule we are revising this section to require that the thermal protection system include a thermal protection blanket with at least a 1/2-inch-thick material that meets § 179.18(c).

    Section 179.202-11

    Section 179.202-11 provides a table of specification requirements for the DOT-117 tank car. Consistent with the mandate in Section 7305 of the FAST Act, in this final rule we are revising the table to make clear that a thermal protection blanket (in accordance with § 179.202-6) is a requirement of the DOT-117 tank car.

    Section 179.202-12

    Section 179.202-12 provides the performance standards for a DOT-117P tank car. For greater understanding by the regulated community, in this final rule we are revising the heading of § 179.202-12 to more clearly indicate that the performance standard requirements apply to the DOT-117P tank car.

    Section 179.202-13

    Section 179.202-13 provides performance standards for retrofit of DOT-111 tank cars (i.e., standards for a DOT-117R tank car). Consistent with the mandate in Section 7306 of the FAST Act, in this final rule we are revising the top fittings protection requirements in paragraph (h) to include minimum standards for the protection of pressure relief devices, valves, or fittings.

    IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of Federal Hazardous Materials Transportation Law (49 U.S.C. 5101 et seq.). Section 5103(b) of Federal Hazmat Law authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.

    B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures 1. Background

    As previously discussed, the HM-251 final rule amended the HMR by defining certain trains transporting large volumes of Class 3 flammable liquids as HHFTs and setting forth regulations (i.e., speed restrictions, braking systems, and routing) for their operation. The HM-251 final rule also adopted into the HMR requirements for sampling and testing programs to ensure the proper classification of unrefined petroleum-based products. Furthermore, it codified new tank car design standards and established a phase-out schedule of legacy tank cars (e.g., DOT-111 tank cars) by requiring use of either a DOT-117, DOT-117P, or DOT-117R specification tank car by certain dates for the transport of Class 3 flammable liquids in HHFTs.

    The FAST Act instructs the Secretary to make specific regulatory amendments to the aforementioned tank car design standards and phase-out schedule codified in the HM-251 final rule. The FAST Act requirements addressed in this final rule are non-discretionary. This final rule revises the newly adopted regulations in the HM-251 final rule to align with the FAST Act. The specific amendments in this final rule are identified in Table 5 below and discussed briefly in the text that follows. Table 5 summarizes the affected population, costs, and benefits:

    Table 5—Summary of Affected Population, Costs, and Benefits Need and Basis for the Rule Congressional Mandate: FAST Act provisions. Applicability Rail tank car manufacturers; tank car owners and lessors; railroad operators; shippers, offerors, and rail carriers. Affected Population 19,757 Flammable Liquid Tank Cars. 73,374 Crude and Ethanol Tank Cars. Total Costs (7% Discount) $520 million. Annualized Costs (7% Discount) $49 million. Costs (Qualitative) Out-of-Service Time. Benefits (Qualitative) Improved puncture resistance. Increased thermal survivability. Enhanced protection of top fittings. Retrofit Schedule

    The FAST Act instructs the Secretary to make specific regulatory amendments to the tank car design standards and phase-out schedule established by the HM-251 final rule. Section 7304 of the FAST Act mandates a phase-out of all DOT-111 tank cars used to transport flammable liquids, thereby requiring that these tank cars meet the DOT-117, DOT-117P, or DOT-117R in part 179 of title 49, regardless of train composition. This differs from the HM-251 final rule, which required flammable liquids previously transported in a DOT-111 tank car to be transported in a DOT-117, DOT-117P, or DOT-117R tank car only when these tank cars were configured as part of an HHFT.

    Thermal Protection Blankets

    Section 7305 of the FAST Act mandates that each tank car built to meet the DOT-117 and each non-jacketed tank car retrofitted to meet the DOT-117R be equipped with a thermal protection blanket of at least 1/2-inch-thick material that meets § 179.18(c) of the HMR.13 Under the HM-251 final rule, a thermal protection blanket was not required, but it was an authorized means of providing the required thermal protection for a DOT-117 tank car and in the regulatory impact analysis it was assumed to be the means of compliance that likely would be used by manufacturers.

    13 The HM-251 final rule did not require that these tank car specifications include a thermal protection blanket as part of the thermal protection system, but rather required that the specification tank cars meet the performance standard specified in § 179.18.

    Top Fittings Protections

    Section 7306 of the FAST Act specifies minimum requirements for top fittings protection on tank cars built to meet the DOT-117R—including a protective housing for the top fittings and the pressure relief device—and allows for an alternative protection system. The FAST Act outlines self-executing performance standards for top fittings protection requirements. Codifying these minimum requirements in the HMR provides clarity for the regulated community on the statutory requirements for top fittings.

    Executive Orders

    Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” This final rule was mandated by congressional action, and the provisions in this action are non-discretionary.

    Executive Order 13610 (“Identifying and Reducing Regulatory Burden”), issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. DOT believes that streamlined and clear regulations are important to ensure compliance with important safety regulations. As such, DOT has developed a plan detailing how such reviews are conducted.14

    14 Department of Transportation's plan for retrospective regulatory reviews is available online at: http://www.dot.gov/regulations/dot-retrospective-reviews-rules.

    This final rule is designated as economically significant, and was reviewed by the Office of Management and Budget (OMB). The final rule is considered a significant regulatory action under the Regulatory Policies and Procedures order issued by the DOT [44 FR 11034; February 26, 1979]. In this section, PHMSA addresses the economic impact of this final rule.

    2. Need for Rule

    The FAST Act instructed the Secretary to make specific regulatory amendments to the aforementioned tank car design standards and phase-out schedule established by the HM-251 final rule. The FAST Act changes adopted in this final rule are non-discretionary. Regardless, the need for the changes adopted in this final rule remains consistent with that in the HM-251 final rule and the HM-251 RIA. Specifically, both the HM-251 final rule and this final rule are designed to lessen the consequences of train accidents involving the unintentional release of flammable liquids. The purpose of the regulations for enhanced tank car standards is to prevent spills by keeping flammable liquids, including crude oil and ethanol, in rail tank cars and to mitigate the severity of incidents should they occur.

    Finally, as previously explained, the requirements of Sections 7304, 7305, and 7306 of the FAST Act are non-discretionary and, in some cases, statutorily self-executing, thus superseding the recently published HM-251 final rule. It is good practice to adjust the HMR to align with the current statutory mandates. PHMSA seeks to reduce confusion within the regulated industries and other members of the public by eliminating inconsistency between the statutory mandates and existing regulatory mandates.

    3. Baseline/Affected Entities

    When examining the cost and budgetary impacts of the provisions in the FAST Act that revise the HM-251 final rule, PHMSA specifically focuses on the cost these changes will impose related to the baseline safety level set by the HM-251 final rule. In other words, the costs considered are only those that are new and add to the previous costs considered in the HM-251 RIA.

    Both the HM-251 final rule and this final rule would impact PHMSA stakeholders, including rail tank car manufacturers; tank car owners and lessors; railroad operators; shippers, offerors, and rail carriers; companies that manufacture, transport, or use flammable liquids; and emergency responders. More specifically, owners and lessors of flammable liquid tank cars, shippers of flammable liquids, and railroads that transport flammable liquids would be affected by this rulemaking. Below is a summary of the affected entities for the specific actions adopted in this final rule. Specifically, for this analysis we look at the number of tank cars to gauge impact. We discuss the affected entities separately below because the number varies for each requirement.

    Retrofit Schedule

    Table 6 is derived from the HM-251 RIA (Table TC2). It represents PHMSA's estimate of the number of DOT-111 and CPC-1232 tank cars that would need to be retrofitted for crude and ethanol service in HHFTs.15

    15 This only includes crude and ethanol tank cars and assumes a 28 percent retirement rate.

    Table 6—Estimated Quantity of DOT-111 Tank Cars in Need of Retrofit Tank car type/service Fleet size Non-Jacketed DOT-111 tank cars in PG I service 11,637 Non-Jacketed DOT-111 tank cars in PG II service 18,493 Jacketed DOT-111 tank cars in PG I and PG II service 2,356 Non-Jacketed CPC-1232 tank cars in PG I and PG II service 15,895 Jacketed CPC-1232 tank cars in PG I, PG II service, and all remaining tank cars carrying PG III materials in an HHFT (pressure relief valve and valve handles). 24,933 Total 73,314

    The FAST Act modifies the retrofit schedule, accelerating deadlines for unrefined petroleum products in PGII and relaxing the schedule for retrofitting DOT-111 tank cars transporting Class 3 flammable liquids other than unrefined petroleum or ethanol. These modifications to the schedule would neither affect the number of cars retrofitted nor the per unit cost of retrofits, instead only affecting the timing of the retrofits. As a result, the cost differential of this adjustment is a matter of the difference in the value of discounting a year or two for a subset of cars, which is negligible. For this analysis, we assume the same distribution of crude and ethanol tank cars as in Table 6 even though it could be argued that given the current economic conditions these numbers overestimate the needed tank car fleet.16 Specifically, the number of tank cars in crude oil or ethanol service that need to be retrofit is likely an overestimate due to lower oil prices, expected future additions to the fleet, reduced tank car demand, an existing tank car surplus, decreased fleet utilization rates, and decreased leasing rates. The Progressive Railroading article cited above notes recent changes in the market for tank cars, driven primarily by a substantial drop in crude oil prices, including that tank car utilization has gone from near 100 percent utilization in June of 2014 to 77 percent utilization in 2015, has resulted in a surplus of 80,000 tank cars. Orders for new tank cars have dropped significantly and the current tank car surplus indicates that unless energy prices rebound, tank car utilization will be well below 100 percent, meaning that fewer cars will be needed to haul crude oil than the industry predicted in 2014. In addition, the AAR weekly rail traffic report from May 7, 2016, noted U.S. Class I railroads originated 63,261 carloads of crude oil in the first quarter of 2016, down 21,664 carloads or 25.5 percent from the fourth quarter of 2015 and down 49,828 carloads or 44.1 percent from the first quarter of 2015.17

    16 Progressive Railroading Article: http://www.progressiverailroading.com/rail_industry_trends/article/Outlook-2016-Rail-car-forecast-by-Richard-Kloster-46701.

    17https://www.aar.org/newsandevents/Press-Releases/Pages/2016-05-11-railtraffic.aspx.

    In addition to modifying the retrofit schedule for crude and ethanol tank cars covered in the HM-251 final rule, the FAST Act requires all DOT-111 flammable liquid tank cars to meet the DOT-117/117R tank car specification based on a retrofit timeline. In comments and appeals to the HM-251 final rule, interested parties estimated that approximately 40,000 additional tank cars would need retrofitting if the retrofit requirements were expanded to all flammable liquids. On September 30, 2014, the Railway Supply Institute (RSI) provided a fleet projection for the end of 2015 in their comments to the HM-251 NPRM docket. Table 7 summarizes the RSI projections:

    Table 7—RSI Projected Flammable Liquids Tank Car Fleet as of the end of 2015 Sub-fleet Crude oil Ethanol * Other
  • flammable
  • liquids *
  • Non-jacketed DOT-111s 23,090 27,037 24,790 Jacketed DOT-111s 7,016 88 9,413 Non-jacketed CPC-1232s 21,993 751 2,944 Jacketed CPC-1232s 35,408 23 1,975 Totals 87,507 27,899 39,122 * Note: Ethanol and Other Flammable Liquids car counts are based on AAR counts of cars that shipped at least one carload of the commodity in question over the period from January 1, 2013 through April 30, 2014. If an individual car switched services during this period, that car will be counted as part of more than one fleet.

    In the HM-251 Final Rule RIA, PHMSA assumed that all legacy tank cars would be either retrofit or retired. Retired cars were assumed to be scrapped rather than transferred to other service. The Agency also assumed that any new car built for crude and ethanol service would be a DOT-117 regardless of whether the car was to be used in manifest service or unit train service. The Agency did not assume that CPC-1232 cars would continue to be built for manifest crude and ethanol service. The Agency's reasoning was that any crude or ethanol car would probably end up in HHFT service at some point even if some portion of those commodities would be hauled by manifest trains. The figures in the Crude and Ethanol columns of Table 7 therefore represent the estimated size of the total crude and ethanol fleets, not just the portion of those fleets destined for HHFT service.

    PHMSA will continue to evaluate the market conditions that drive industry decisions regarding the tank car fleet. Most recently, the tank car market has seen a growing tank car surplus, along with decreasing fleet utilization rates and decreased leasing rates.18 19 Furthermore, as stated in the note to Table 7, for “Other Flammable Liquids” 20 (OFL) the car counts are based on AAR counts of cars that shipped at least one carload of the commodity in question over the period from January 1, 2013 through April 30, 2014. This is the same approach to counting tank cars that was utilized in the HM-251 RIA. The concern is that if an individual car switched services (e.g., from ethanol to another flammable liquid) during this period, that car would be counted as part of more than one fleet. In a February 29, 2016, letter to PHMSA, RSI reiterated the difficulty in formulating accurate tank car fleet estimates, particularly when tank cars are likely being shifted between different types of service.21 As such, we believe that counting tank cars in this manner double counts an individual car if that car switched services during the period. Such double counting may be temporary, however. If the shipping demand increases for crude oil, switching between services may become much less prevalent.

    18See http://www.progressiverailroading.com/virtualmag/pr1215/files/14.html.

    19See http://www.wsj.com/articles/demand-for-key-types-of-railway-cars-falls-amid-declining-output-1429908476.

    20 “Other Flammable Liquids” means any material meeting the definition of a flammable liquid as defined in §§ 172.120 and 173.121 excluding those classified under proper shipping names related to crude and ethanol.

    21 See [insert RSI letter into the docket].

    Based on this discussion, PHMSA will continue to use the crude and ethanol fleet size estimated in the HM-251 RIA acknowledging that those tank car numbers may now be an over-estimation. Regarding the additional flammable liquid tank cars that are included in the scope of this rule based on the FAST Act requirements, we are using the RSI estimate as a basis for determining the fleet size but are modifying it based on the factors discussed above (i.e., potential double counting inflating the fleet estimate and falling demand for cars in crude oil service). We estimate the total OFL fleet size is between 20,000 to 30,000 tank cars. We arrived at this estimate by making two adjustments: Remove the Canadian fleet, which was estimated to account for 25.7 percent of cars in the HM-251 final rule RIA (see page 80); and, reduce the remaining U.S. fleet by 10 percent to adjust for double counting due to switching service (as referenced in the note to Table 7 above).22 This reduction puts the affected OFL fleet estimate in the middle of the 20,000-30,000 range (26,161 in table below). The estimates in Table 8 below were obtained by multiplying the figures in Table 7 by 0.743 (1 − 0.257 = 0.743) and 0.90 (1 − 0.10 = 0.90), sequentially. For the purposes of this analysis, we define the flammable liquid tank car population affected by these provisions as follows in Table 8.

    22 Starting with the RSI data in Table 7, we sequentially take out 25.7% to remove the Canadian fleet and then take out 10% of the remainder to adjust for double counting due to switching service.

    Table 8—PHMSA Projected Flammable Liquids Tank Car Fleet used for FAST Act Cost Determination Sub-fleet Other flammable liquids Non-jacketed DOT-111s 16,577 Jacketed DOT-111s 6,294 Non-jacketed CPC-1232s 1,969 Jacketed CPC-1232s 1,321 Total 26,161

    PHMSA uses the fleet estimates for OFL in Table 8 as the basis for the cost estimates related to OFL in this rule. While the HM-251 final rule requirements captured OFL that were transported in an HHFT configuration, PHMSA did not expect OFL to be transported in HHFT service therefore no costs or benefits were assigned to those materials in the HM-251 RIA. The key difference between the HM-251 final rule and the FAST Act requirements that are being adopted in this action is that the latter covers all flammable liquid cars regardless of train composition. Therefore, these tank cars are considered in this analysis and will require full retrofits—including not just top fittings protection and thermal protection blankets, but also full height head shields, full jackets, improved bottom outlet valve handles, and high capacity pressure relief valves—to meet the FAST Act requirement that all flammable liquid cars meet the DOT-117R.

    Thermal Protection Blankets

    The FAST Act requires that each tank car built to meet the DOT-117 and each non-jacketed tank car retrofitted to meet the DOT-117R be equipped with an “insulating blanket,” which as clarified above, we have defined here to mean a thermal protection blanket. This requirement is consistent with the assumptions made for meeting the DOT-117R in the HM-251 RIA. Although PHMSA acknowledged that new alternate technologies to existing thermal protection blankets may become available for meeting the performance requirement of that rule, we assumed that the jacketed CPC-1232 cars were equipped with a thermal protection system meeting § 179.18 and there was no associated retrofit cost. Thus, for crude and ethanol cars, thermal protection blanket costs are already accounted for; hence, this FAST Act requirement does not add additional costs for these cars. Neither the FAST Act nor these complying regulations require jacketed cars to be retrofitted with thermal protection, so associated costs would not be borne regardless of the assumptions made in the HM-251 rulemaking analysis.

    Section 7305(b) of the FAST act provides a savings clause that states “[n]othing in this section shall prohibit the Secretary from approving new or alternative technologies or materials as they become available that provide a level of safety at least equivalent to the level of safety provided for under subsection (a).” As the regulatory text is written, the prescriptive standards for thermal protection blankets are applied for new DOT-117 and DOT-117Rs. The section related to DOT-117Ps is not revised thus if an entity were able to provide a design that exceeded the prescriptive standard for a thermal protection blanket in the FAST act and FRA were to approve that design as a DOT117P they could innovate.

    The thermal protection blanketing provision will only affect those non-jacketed flammable liquid cars in need of retrofit. Specifically, we estimate 18,546 tank cars (comprised of the non-jacketed legacy DOT-111 and non-jacketed CPC-1232 tank cars in OFL service listed in Table 8) will be affected.

    Top Fittings Protection

    The HM-251 final rule did not require modification or addition of top fittings protections to meet the DOT-117R. The FAST Act requires enhanced top fittings protections for all retrofit cars. Tank cars built to the CPC-1232 industry standard are already equipped with top fittings protections; therefore, this new cost only applies to legacy DOT-111 tank cars transporting crude oil and ethanol, as well as those transporting OFL that are now included in our scope per the FAST Act. In total, we estimate 55,357 tank cars (13,905 crude tank cars, 18,581 ethanol tank cars, and 22,871 OFL tank cars) will be affected (see Tables 6 and 8, above).

    4. Summary of Costs

    PHMSA applies the same retrofit costs that were applied in the HM-251 RIA to all cars being retrofitted (all CPC-1232 tank cars and the DOT-111 tank cars that are not retired). The unit retrofit costs used in the HM-251 RIA are applied to OFL tank cars, along with the estimated cost of installing top fittings protection. The unit costs, including out-of-service time, were estimated at $38,923 for a non-jacketed DOT-111 tank car.23 The addition of top fittings protection raises this cost to $43,508. For a jacketed DOT-111 tank car, the unit cost of retrofitting in the HM-251 RIA was $28,123. With top fittings protection, this cost rises to $32,708 per car. PHMSA assumes these cars will be retrofitted in the final 5 years of the allowed timeframe (i.e., between 2025 and 2029). Table 10 describes the cost and modifications needed by fleet and tank car type. PHMSA estimates that 76 percent of the total costs of the FAST Act tank car retrofit requirements accrue to the non-jacketed DOT-111 tank cars. In addition, we apply a $4,585 per car cost to account for the cost of enhancing top fittings protection on the legacy DOT-111 tank cars (both jacketed and non-jacketed).24 The per unit cost for each tank car type is listed below in Table 10 below.

    23 Given the decrease demand for DOT-111 tank cars since the publication of HM-251 final rule, costs associated with out-of-service time may be lower than originally estimated due to underutilization of the fleet.

    24 See RSI letter to PHMSA [add link to docket].

    Retirements

    As noted above, we assume that 28 percent of OFL tank cars would be retired rather than retrofit. For the HM-251 RIA virtually all retirements were forced early retirements because the retrofit timeline was aggressive, especially for legacy DOT 111 tank cars. The FAST Act deadline is substantially more lenient, and as a result, the Agency believes it appropriate to consider natural retirements as well as forced early retirements. We use the fleet age profile used in the 2015 HM-251 RIA to estimate retirement costs to identify the number of cars in each year from 2016 to 2028 that would reach the end of their useful life. We then assume that the remainders of the 28 percent of retired cars are forced to retire in 2029. Given the longer time horizon for FAST Act compliance the Agency believes this treatment is appropriate. Natural retirements will occur over the nearly decade and a half, and tank car lessors and operators will have more time to plan for moving some of the fleet that is not worth retrofitting into other service rather than scrapping the cars.

    We conduct this analysis by assuming, absent FAST Act requirements, that a retired non-jacketed DOT-111 tank car would be replaced with a non-jacketed CPC-1232 and a retired jacketed DOT-111 tank car would have been replaced with a jacketed CPC-1232 tank car. In addition, we assume that industry would have built improved CPC-1232 tank cars for OFL service—with pressure relief valves (PRVs) and bottom outlet valve (BOV) handles that would meet DOT-117 requirements. The non-jacketed cars would (obviously) not have jackets, but would have a 1/2 inch shells and half height head shields. The jacketed cars would have 7/16 inch shells and jackets with thermal protection and top fittings protection. The only difference between these cars and a DOT-117 tank car is an eighth of an inch of shell thickness, which PHMSA estimates to be a $3,000 higher cost for the DOT-117 tank car compared to a jacketed CPC-1232 tank car in the HM-251 Final Rule RIA.25

    25 We assume that these cars would have been built with HM-251 conforming pressure relief valves (PRV) and bottom outlet valve handles (BOV) and FAST Act conforming top fittings protection. We assume that adding better PRV and BOV handle would not add appreciably to the cost of a car when done at the manufacturing stage. As noted above, all CPC-1232 tank cars are built with conforming top fittings protection so that assumption carries through here.

    As we found in the development of the HM-251 final rule analysis, tank car purchase prices are difficult to obtain. One way to approximate them is to use modified retrofit costs for upgrading a car from one type to another. As noted, the cost difference between a DOT-117 and a jacketed CPC-1232 is approximately $3,000, because the only difference between the two cars is the thickness of the tank shell. The differential for a non-jacketed CPC-1232 is more complicated because it lacks several components found on the jacketed car. However, the unjacketed CPC-1232 has a thicker shell (1/2 inch rather than 7/16 inches) than the unjacketed CPC-1232 and would therefore only need sixteenth of an inch of shell thickness ($1,500). The non-jacketed CPC-1232 also has half height head shields. To be fully upgraded to the DOT-117 standard, the required additions would be a jacket with full height head shields (rather than half height), thermal protection, and a sixteenth of an inch of shell thickness. The retrofit costs for a non-jacketed CPC-1232 are presented below as a starting point for a new car differential. PHMSA modifies these by:

    • Eliminating costs of the BOV and PRV, under the assumption that when done at the manufacturing stage swapping out one part for another would have minimal cost;

    • Subtracting $1,000 from the cost of a jacket and head shields to account for repurposing the steel that would have been used for the non-jacketed CPC-1232 half height head shield into half of a full height head shield;

    • Adding $1,500 to increase the shell thickness by a sixteenth of an inch (half the cost of increasing the shell thickness of a CPC-1232 by an eighth of an inch); and,

    • Increasing the learning curve efficiency to 15 percent because manufacturing efficiencies for new builds should be greater than for retrofits.26

    26 Because components can be added in the most logical and time efficient sequence during the manufacturing process. With the retrofit process certain components may have to be removed to apply thermal protection and a jacket and then reattached.

    Table 9—Retrofit Costs for the Non-Jacketed, DOT CPC-1232NJ (Option 3 Tank Car) and New Car Differential Estimate Retrofit option Retrofit cost from HM-251 New car
  • differential
  • cost
  • Bottom outlet valve handle retrofit cost $1,200 NA Pressure relief valve retrofit cost $1,500 NA Thermal protection retrofit cost $4,000 $4,000 Full jacket retrofit cost with half height head shields $23,400 $22,400 Extra shell thickness NA $1,500 Unadjusted Total $30,100 $27,900 Learning curve cost reduction 10% 15% Adjusted Total $27,090 $23,715

    This yields a car cost differential of $23,715 between a non-jacketed CPC-1232 tank car and a DOT-117 tank car. We apply this cost to natural retirements to reflect the differential cost between purchasing a non-Jacketed CPC-1232 and a DOT-117. For jacketed DOT-111s that age out of the fleet, we use the cost differential between a jacketed CPC-1232 and a DOT-117 ($3,000). For early retirements, we use the car cost differential plus the cost of having to buy a new DOT-117 earlier than planned—$20,649 for a non-jacketed early retirement and $16,716 for a jacketed car.

    We also reassessed the cost of early retirements, which is dependent on the average remaining service life for the cars retired early. For the HM-251 rule this average was 1.9 years for non-jacketed DOT-111s and 1.3 years for jacketed DOT-111s. Due to the overall DOT-111 age distribution, the cars retired for OFL service have a higher average remaining life. For non-jacketed DOT-111s the average is 2.87 years of remaining life, and for jacketed DOT-111s the average is 2.28 remaining years of life.27 This raises the early retirement cost for both car types to those presented in Table 10 below. A summary of all OFL cost parameters are presented below.

    27 Years of remaining service life were calculated in the same manner as the HM-251 RIA (See pages 162-163). Due to the differing age distributions of the OFL fleet compared to the crude and ethanol fleets the average remaining life is higher for OFL.

    Table 10—Unit Costs for FAST Act Requirements, Other Flammable Liquids Fleet Sub-fleet HM-251
  • retrofit cost
  • Top fittings protection cost Total cost
  • per car
  • Non-jacketed DOT-111 $38,923 $4,585 $43,508 Jacketed DOT-111 28,123 4,585 32,708 Non-jacketed CPC-1232 28,034 0 28,034 Jacketed CPC-1232 3,374 0 3,374 Non-jacketed DOT-111 Scheduled Retirement 23,715 Jacketed DOT-111 Scheduled Retirement 3,000 Non-jacketed DOT-111 Early Retirement 44,364
  • (23,715 + 20,649)
  • Jacketed DOT-111 Early Retirement 19,716
  • (16,716 + 3,000)
  • These unit costs are applied to the fleet figures presented in the Table 11 below. For retirements, the cost of natural retirements is applied to the figures in the columns showing retirements for years 2016-2028. Early retirement costs are applied to the 2029 figures in the columns showing retirements. Retrofit costs are estimated by applying the retrofit unit costs above to the corresponding car-type retrofit column in the table below.

    Table 11—Type of Flammable Liquid Retrofit and Retirements Based on FAST Act Requirements * Retrofit
  • non-jacketed
  • DOT 111
  • Retrofit
  • jacketed
  • DOT-111
  • Retrofit
  • non-jacketed
  • CPC 1232
  • Retrofit
  • jacketed
  • CPC 1232 J
  • Retire
  • non-jacketed
  • 111
  • Retire
  • jacketed
  • DOT-111
  • Baseline 16,577 6,294 1,969 1,321 26,161 Baseline adjusted for retirements ** 11,935 4,532 1,969 1,321 4,642 1,762 2016 384 146 2017 261 99 2018 202 77 2019 101 38 2020 129 49 2021 156 59 2022 93 35 2023 156 59 2024 318 121 2025 2,387 906 394 264 374 142 2026 2,387 906 394 264 291 110 2027 2,387 906 394 264 220 84 2028 2,387 906 394 264 202 77 2029 2,387 906 394 264 1,755 666 * FAST Act other flammable liquid retrofit requirements start in 2025 and end in 2029. ** Total of years for each type.

    Total cost estimates are presented in Table 12 below. These costs are obtained by applying the unit costs in Table 10 to the fleet figures in Table 11.

    Table 12—Analysis of Costs for Other Flammable Liquid Retrofit and Retirements For FAST Act Requirements * Year Retrofit
  • non-jacketed
  • 111
  • Retrofit
  • jacketed
  • 111
  • Retrofit CPC non-jacketed
  • 1232
  • Retrofit
  • jacketed
  • CPC-1232
  • Retire
  • non-jacketed
  • DOT-111
  • Retire jacketed
  • DOT-111
  • Total cost
    2016 $0 $0 $0 $0 $9,106,560 $438,000 $9,544,560 2017 0 0 0 0 6,189,615 297,000 6,486,615 2018 0 0 0 0 4,790,430 231,000 5,021,430 2019 0 0 0 0 2,395,215 114,000 2,509,215 2020 0 0 0 0 3,059,235 147,000 3,206,235 2021 0 0 0 0 3,699,540 177,000 3,876,540 2022 0 0 0 0 2,205,495 105,000 2,310,495 2023 0 0 0 0 3,699,540 177,000 3,876,540 2024 0 0 0 0 7,541,370 363,000 7,904,370 2025 103,853,596 29,633,448 11,045,396 890,736 8,869,410 426,000 154,718,586 2026 103,853,596 29,633,448 11,045,396 890,736 6,901,065 330,000 152,654,241 2027 103,853,596 29,633,448 11,045,396 890,736 5,217,300 252,000 150,892,476 2028 103,853,596 29,633,448 11,045,396 890,736 4,790,430 231,000 150,444,606 2029 103,853,596 29,633,448 11,045,396 890,736 77,858,820 13,130,856 236,412,852 Non-discounted Total 889,858,761 NPV 7% Discount Rate 405,750,881 NPV 3% Discount Rate 629,195,653 * FAST Act other flammable liquid retrofit requirements start in 2025 and end in 2029.

    For the cars already accounted for in the HM-251 RIA, the only additional cost is to modify top fittings protection for the DOT-111 tank cars. As previously stated, PHMSA assumed in the HM-251 RIA that thermal protection blankets would be used to satisfy the thermal protection requirements in the HM-251 final rule and acknowledges that tank cars built to the CPC-1232 standard are equipped with top fittings protection meeting the requirements of the FAST Act. As mentioned above, we assume a unit cost of $4,585 per car for this modification. Table 13 presents the costs of further modifying these cars. Again, discounted NPV is calculated by setting 2016 as year 1.

    Table 13—Cost for Crude and Ethanol Retrofit Based on FAST Act Requirements Year Non-jacketed
  • DOT-111
  • Jacketed
  • DOT-111
  • Total
    2016 $20,233,605 $0 $20,233,605 2017 33,122,040 3,287,445 36,409,485 2018 0 7,225,960 7,225,960 2019 0 0 0 2020 22,938,755 0 22,938,755 2021 40,068,315 0 40,068,315 2022 23,273,460 288,855 23,562,315 2023 90,554 0 90,554 Non-discounted Total 139,726,729 10,802,260 150,528,989 NPV 7% 105,440,453 8,949,802 114,390,255 NPV 3% 123,203,667 9,946,375 133,150,042

    As summarized in Table 14, total discounted costs for all provisions are about $520 million over 20 years at a 7 percent discount rate and $762 million at a 3 percent discount rate. The potential benefits of these changes are discussed further below.

    Table 14—Total Costs of FAST Act Requirements (20 Year and Annualized) Cost category NPV 3% NPV 7% Cost for Crude and Ethanol Retrofit (20 Year) $133,150,042 $114,390,255 Cost for Flammable Liquid Retrofit and Retirement (20 Year) 629,195,653 405,750,881 Total (20 Year) 762,345,695 520,141,136 Annualized Cost 51,241,605 49,097,644

    PHMSA has made a number of assumptions regarding the cost of these requirements, including the following:

    • Tanks cars built to the CPC-1232 industry standard are equipped with top fittings protection that conforms to the FAST Act requirement, and therefore would not need top fittings-related retrofits due to the FAST Act requirement.

    • Adding new top fittings protection that conforms to the FAST Act would not add significant weight to cars, and hence PHMSA does not estimate any additional track maintenance and fuel consumption costs for cars on which top fittings are modified.

    • The analysis does not account for the fuel and track maintenance costs for the OFL tank car retrofits. These retrofits occur near the end of the 20-year analysis period; hence, any fuel and maintenance costs would only accrue for a few years and would be heavily discounted.

    • The analysis assumes the same 28 percent retirement rate for OFL tank cars as was assumed for the crude and ethanol cars in the HM-251 RIA but considers both natural and forced early retirements.

    • Adding top fittings protection would not affect the retirement decision (i.e., adding top fittings protection to crude, ethanol, or OFL tank cars would not result in retirement of a higher proportion of these cars).

    • The size of the crude oil fleet remains unchanged despite the recent drop in crude oil production and shipments by rail, which is expected to persist at least in the near term.

    • OFL service cars would be replaced with a CPC-1232 in the absence of this regulation (and the Fast Act), since the rail industry supported plans to build jacketed CPC-1232 cars and began to build them for crude and ethanol service prior to the promulgation of the HM-251 final rule.28 As a sensitivity analysis below, we assess costs assuming OFL service cars would be built to the higher DOT-117 standards promulgated in the HM-251 final rule in absence of this rule.

    28 Jacketed CPC-1232 tank cars have been built for OFL service. PHMSA estimates that approximately 2,000 of these tank cars are currently used in this service on a quarterly basis. See also American Chemistry Council (ACC) comments from 2014 at https://www.regulations.gov/document?D=PHMSA-2012-0082-0219. ACC stated “that the chemical industry has been purchasing tank cars built to the CPC 1232 standard for several years and they support provisions that would require all new DOT 111 tank cars to meet the CPC 1232 standard with the exception of thermal protection. ACC noted that thermal protection should be considered a commodity specific addition that is not appropriate in all cases”.

    The estimated retrofit costs of the rule, by provision, are presented in Table 15 below. The costs in this table exclude retirement costs.

    Table 15—Estimated Non-Discounted Cost Breakdown of the FAST Act Tank Car Retrofit Requirements Service type Tank car type Modification needed Tank cars
  • impacted 29
  • Cost per tank car Discounted 30 total cost
  • (thousands)
  • % of total costs
    Crude and Ethanol Non-jacketed DOT-111 Thermal Blanket 31
  • Top Fittings Protection.
  • 30,475 $4,585 $105,440,453 25
    Jacketed DOT-111 Top Fittings Protection 2,356 4,585 8,949,802 2 Non-jacketed CPC-1232 Thermal Blanket 15,895 NA 0 0 Jacketed CPC-1232 24,993 NA 0 0 Flammable Liquid 32 Non-jacketed DOT-111 33 Tank Retrofit
  • Thermal Blanket.
  • Top Fittings Protection.
  • 11,425 43,508 231,618,001 52
    Jacketed DOT-111 34 Tank Retrofit
  • Top Fittings Protection.
  • 4,335 32,708 66,089,575 15
    Non-jacketed CPC-1232 Tank Retrofit
  • Thermal Blanket.
  • 1,885 28,034 24,633,837 6
    Jacketed CPC-1232 Tank Retrofit 1,265 3,374 1,986,551 0.4
    5. Sensitivity Analysis of Costs

    29 Numbers are derived from Table 25 for crude and ethanol and Table 47 for flammable liquids from the RIA.

    30 These costs are NPV discounted at 7%.

    31 PHMSA assumed that to meet the performance standard specified in § 179.18 each tank car built to meet the DOT-117 specification and each non-jacketed tank car retrofitted to meet the DOT-117R specification would do so using a thermal protection blanket; thus no cost for thermal protection blankets is added for the fleet included in the HM-251 scope.

    32 Costs associated with retiring older OFL tank cars are not incorporated into this table, but are incorporated in the figures presented elsewhere in this section (see Table 11).

    33 Includes retirement costs.

    34 Includes retirement costs.

    In the above analysis, the cost applied to early retirements is based on the industry continuing to build CPC-1232 cars (both jacketed and unjacketed) for OFL service. Industry could also build to the higher DOT-117 standards when replacing retired OFL service cars. We consider an alternative cost analysis that assumes industry voluntarily replaces retired legacy cars with DOT-117s based on the following:

    • The industry was already ordering DOT-117 tanks cars for crude and ethanol service prior to publication of the final rule.35

    35 See http://www.railwayage.com/index.php/mechanical/freight-cars/tank-car-of-the-future-among-greenbrier-railcar-contracts.html.

    • Replacing retired cars with a DOT-117 tank car would enable tank car owners and leasers to switch cars between crude, ethanol, and OFL service, thereby ensuring fuller utilization in periods where demand wanes in one segment of the industry and demand in another service is high.

    This sensitivity analysis assumes that natural retirements are replaced with DOT-117s at no additional cost and costs applied to early retirements are the costs associated with buying a car earlier than planned. The unit costs associated with this sensitivity analysis are presented in Table 16 below.

    Table 16—Unit Costs Used in Sensitivity Analysis of FAST Act Requirements, Other Flammable Liquids Fleet Sub-fleet HM-251
  • retrofit cost
  • Top fittings protection cost Total cost per car
    Non-jacketed DOT-111 $38,923 $4,585 $43,508 Jacketed DOT-111 28,123 4,585 32,708 Non-jacketed CPC-1232 28,034 0 28,034 Jacketed CPC-1232 3,374 0 3,374 Non-Jacketed DOT-111 Scheduled Retirement 0 Jacketed DOT-111 Scheduled Retirement 0 Non-jacketed DOT-111 Early Retirement 20,649 Jacketed DOT-111 Early Retirement 16,716

    We applied these costs to the OFL fleet retrofit and retirement schedule presented above. Table 17 summarizes costs for the OFL fleet using the alternative baseline as a sensitivity analysis. Table 18 summarizes the total cost of the rule using the alternative baseline and includes costs associated with retrofitting the crude and ethanol fleet with top fittings protection. This sensitivity analysis found the cost of the rule to be about 12 percent less if industry were to build DOT-117 tank cars rather than CPC-1232 tank cars in absence of the FAST Act.

    Table 17—Sensitivity Analysis of Costs for Flammable Liquid Retrofit and Retirements Based on FAST Act Requirements Year Retrofit
  • non-jacketed
  • 111
  • Retrofit
  • jacketed
  • 111
  • Retrofit CPC non-jacketed 1232 Retrofit
  • jacketed
  • CPC-1232
  • Retire
  • non-jacketed
  • DOT-111
  • Retire jacketed DOT-111 Total cost
    2016 $0 $0 $0 $0 $0 $0 $0 2017 0 0 0 0 0 0 0 2018 0 0 0 0 0 0 0 2019 0 0 0 0 0 0 0 2020 0 0 0 0 0 0 0 2021 0 0 0 0 0 0 0 2022 0 0 0 0 0 0 0 2023 0 0 0 0 0 0 0 2024 0 0 0 0 0 0 0 2025 103,853,596 29,633,448 11,045,396 890,736 0 0 145,423,176 2026 103,853,596 29,633,448 11,045,396 890,736 0 0 145,423,176 2027 103,853,596 29,633,448 11,045,396 890,736 0 0 145,423,176 2028 103,853,596 29,633,448 11,045,396 890,736 0 0 145,423,176 2029 103,853,596 29,633,448 11,045,396 890,736 36,238,995 11,132,856 192,795,027 Non-discounted Total 774,487,731 NPV 7% Discount Rate 342,699,585 NPV 3% Discount Rate 541,748,518
    Table 18—Sensitivity Analysis of Costs for FAST Act Requirements (20 Year and Annualized) Cost category NPV 3% NPV 7% Cost for Crude and Ethanol Retrofits (20 Year) $133,150,042 $114,390,255 Cost for Other Flammable Liquid Retrofit and Retirement (20 Year) 541,748,518 342,699,585 Total Discount Cost (20-Year) 674,898,561 457,089,840 Annualized Cost 45,363,784 43,146,047 6. Summary of Benefits

    The implementation of this final rule ensures that all Class 3 flammable liquids are packaged in tank cars meeting improved specifications, thus reducing the likelihood that a train transporting any volume of flammable liquids will release such liquids should it derail. This final rule also reduces the consequences of an incident should one occur by diminishing the number of tank cars likely to be punctured and the subsequent release of flammable liquids in a derailment. The goals of this rule are thus consistent with those of the HM-251 final rule. Specifically, both the HM-251 final rule and this final rule are designed to lessen the consequences of train accidents involving the unintentional release of flammable liquids. The main difference is that this rule is simply intended to align the HMR with the non-discretionary mandates of the FAST Act. The purpose of the regulations for enhanced tank car standards is to prevent spills by keeping flammable liquids, including crude oil and ethanol, in rail tank cars and to mitigate the severity of incidents should they occur. Below we qualitatively discuss the benefits of each requirement addressed in this rule individually and provide a final discussion of the combined benefits of the provisions.

    Retrofit Schedule

    The FAST Act mandates a new phase-out schedule for DOT-111 tank cars—including DOT-111 tank cars constructed to the CPC-1232 industry standard—used to transport unrefined petroleum products (e.g., petroleum crude oil), ethanol, and other Class 3 flammable liquids, irrespective of train composition. We estimate that the FAST Act's phase-out schedule impacts approximately 25,000 tank cars. With regard to benefits, these 25,000 tank cars will realize improved puncture resistance, enhanced thermal survivability, and increased top fittings protection. While these 25,000 tank cars would not travel in large blocks of cars like HHFTs, they would see benefits in potentially avoiding releases.

    Thermal Protection Blankets

    The FAST Act mandates that each tank car built to meet the DOT-117 standard and each non-jacketed tank car retrofitted to meet the DOT-117R standard be equipped with a thermal protection blanket with at least 1/2-inch-thick material that meets § 179.18(c). In the HM-251 final rule, PHMSA required all cars in HHFT service be equipped with an 11-gauge jacket but did not require a particular thermal protection material or thickness, instead requiring that a thermal protection system (which includes a pressure relief device) meet the performance standard of § 179.18. Although PHMSA acknowledged that alternative technologies to thermal protection blankets exist (e.g., intumescent paint) and that others may become available for meeting the performance requirement of that rule, PHMSA assumed that thermal protection blankets would be the technology of choice and proactively included their cost in the retrofit costs. Thus, for crude and ethanol cars, thermal protection blanket benefits are already accounted for; hence, this FAST Act requirement does not add additional retrofit benefits for these cars. The FAST Act does add thermal protection blankets to other tank cars used for OFL. Consequently the entire flammable liquid fleet will now realize benefits from this requirement.

    A thermal protection blanket provides benefits in the form of thermal protection, which prevents the temperature of the tank car from reaching 800 °F, the temperature at which the shell becomes malleable and its mechanical properties degrade. At temperatures above 800 °F, the shell will thin as a result of the hoop stress caused by the increasing pressure in the tank. After a period of time with excessive pressure, the thinning wall will fracture and result in a failure of the tank.

    As established in § 179.18 of the HMR, a thermal protection system serves to prolong the survivability of a tank exposed to a pool or torch fire by limiting the heat flux into the tank material and its lading, thereby delaying the increase of pressure in the tank. The National Transportation Safety Board (NTSB) has acknowledged that the absence of adequate thermal protection could lead to a higher likelihood of release and thermal tearing of tank cars.36 Conversely, the presence of adequate thermal protection (i.e., a thermal protection blanket) should lead to a lower likelihood of these events.

    36http://www.ntsb.gov/safety/safety-recs/recletters/R-15-014-017.pdf.

    Top Fittings Protection

    The HM-251 final rule did not require top fittings protections to meet DOT-117R. The FAST Act requires enhanced top fittings protection for all retrofitted cars. The top fittings protection consists of a structure of specific design requirements intended to minimize damage to the service equipment. Top fittings protection will minimize the shearing off of and damage to valves and fittings on the top of the tank car when involved in a derailment scenario. The NTSB has acknowledged that the absence of top fittings could lead to a higher likelihood of release.37 The benefits of top fittings protection will now be realized by the entire flammable liquid fleet.

    37http://www.ntsb.gov/safety/safety-recs/recletters/R-12-005-008.pdf.

    Combined and Quantified Benefits

    The FAST Act mandates a new phase-out schedule for DOT-111 tank cars—including DOT-111 tank cars constructed to the CPC-1232 industry standard—used to transport unrefined petroleum products (e.g., petroleum crude oil), ethanol, and other Class 3 flammable liquids, irrespective of train composition. In addition, the FAST Act mandates that each tank car built to meet the DOT-117 and each non-jacketed tank car retrofitted to meet the DOT-117R be equipped with a thermal protection material having a minimum 1/2-inch thickness that meets § 179.18(c). Furthermore, the FAST Act specifies minimum top fittings protection requirements for tank cars retrofit to meet the DOT-117R.

    As previously mentioned, the HM-251 final rule required Class 3 flammable liquids to be transported in a DOT-117, DOT-117P, or DOT-117R tank car only if these tank cars were configured as part of an HHFT. The FAST Act instructed the Secretary to require that all Class 3 flammable liquids be transported in either a DOT-117, DOT-117P, or DOT-117R tank car, whether or not the flammable liquid is transported as part of an HHFT. Applying these requirements to individual tank cars expands the scope of the impacted tank cars, which will reduce the overall probability and quantity of a Class 3 hazardous liquid material release and will minimize the consequences of an incident should one occur, including deaths and injuries.

    In the HM-251 RIA, PHMSA addressed the risks posed by unit trains or trains with large blocks of tank cars containing flammable liquids. The FAST Act modifies the retrofit schedule, accelerating deadlines for unrefined petroleum products in PGII and relaxing the schedule for retrofitting DOT-111 tank cars transporting Class 3 flammable liquids other than unrefined petroleum or ethanol. Consistent with the FAST Act, this rule requires that all tank cars used to transport Class 3 flammable liquids meet either the DOT-117, DOT-117P, or DOT-117R in part 179 of the HMR, irrespective of train composition.

    Enhancing crude and ethanol tank cars with better top fittings protection, and all flammable liquid tank cars on manifest trains with top fittings protection, jackets, thermal protection systems, full height head shields, and better outlet valves, will reduce the likelihood of release in the event of a derailment. As a result, fewer car punctures and fewer releases of material will occur, thereby mitigating the associated damages. This rule is therefore expected to reduce the damages to society associated with release of Class 3 flammable liquids in rail transportation.

    The benefits of applying these requirements to trains carrying large quantities of crude and ethanol (i.e., HHFTs) were estimated in the HM-251 final rule RIA, though those estimated benefits do not include the benefit of improved top fittings protection for tank cars that are retrofit. As noted in that document, the estimated effectiveness rates do not include any benefits from additional top fittings protection, because those benefits are relatively small and uncertain and would apply only to new construction (HM-251 RIA page 184). As a result, we did not estimate benefits of top fittings protection for the cars and fleet covered in this final rule based on the prior HM-251 analysis. PHMSA focusses the following benefits discussion and estimation for this final rule on requirements for tank cars carrying flammable liquids on manifest trains only to comply with the 117, 117P, or 117R specification.

    PHMSA assumes the upgrades to the OFL cars produce identical effectiveness to those estimated in the HM-251 analysis for a comparable car upgrade—i.e. upgrading or replacing a non-jacketed DOT-111 would reduce the probability of release by an equivalent amount whether the car is hauling crude, ethanol, or some OFL. Given the variation of the properties of materials within this packing group this assumption may or may not be valid. Some materials may have different flash points or other properties that enhance or reduce risk, when compared to crude or ethanol. In addition, some of these products, such as acrylonitrile stabilized, if ignited, produce fumes or smoke while burning that is far more toxic than those produced by crude and ethanol. Thus, for some packing group 3 materials, a fire resulting from a release that is ignited may pose much higher risks of injury to nearby populations than a crude or ethanol fire would pose. OFL products, such as paint, may pose lower risk of injury to nearby populations than a crude or ethanol fire would pose.

    Challenges and Data Limitations

    The wide variety of materials within Packing Group 3 poses a challenge to monetizing benefits for OFL. There are over 500 Class 3 materials, and the properties of these materials vary widely. Although the flammable properties of these materials may be similar to crude and ethanol, the type and extent of contamination of the natural or human environment that results from accidental release may be completely different, depending on the commodity involved. In addition, even if the flammable properties of the liquids were identical, the average spill size of the incidents affected by this rule is substantially smaller than the average spill size of incidents involving HHFTs (7,027 gallons compared to 84,000 gallons). Given uncertainties about fixed and variable costs of spills, PHMSA may not be able to produce valid per gallon cost estimates for a roughly 7,000 gallon spill based on the HHFT rule estimates. We do not believe it is meaningful to use the per gallon spill cost estimates developed in the HM-251 analysis to monetize damages and costs of the releases affected by this rule since those estimates were based on research and data involving crude and ethanol spill damages. As a result, we do not monetize benefits for this final rule. We instead present a break-even analysis that identifies how large the per gallon cost or damage of a spill would need to be for this rule's benefits to equal its costs. We do this by estimating the likely number of events that may occur over the analysis period, the likely average size of these events, and by assuming that the mitigation of the size of events that will result if all OFL tank cars are upgraded to the DOT-117R standard or replaced with new DOT-117 cars is the same as the mitigation levels estimated in the HMR-251 final rule's regulatory impact analysis for tank cars used on HHFTs.

    Incident History

    PHMSA identified train derailments that involved OFL products over the last decade for which data is complete (2006-2015), and presents this data in the table below (ordered by date). This table presents the average release and damages reported in incident report forms. We found 54 events over the past ten years resulting in a total quantity released of 379,464 gallons. Based on this dataset, the average spill size is 7,027 gallons. This is much smaller than the average crude/ethanol spill, which was estimated at 83,602 gallons.

    Table 18—Summary of Class 3 Hazardous Material Derailments With Release Involving Other Flammable Liquids, Excluding Crude Oil and Ethanol [2006-2015] Year Total number of incidents Total gallons released Average of quantity
  • released
  • (gallons)
  • Sum of
  • reported
  • damages
  • ($) *
  • 2006 3 124 41 $99,565 2007 11 117,300 10,664 6,465,335 2008 3 6,132 2,044 187,350 2009 6 17,350 2,892 1,416,713 2010 5 56,390 11,279 2,844,842 2011 4 28,339 7,086 1,575,490 2012 8 105,400 13,175 6,959,474 2013 8 13,703 1,713 10,842,912 2014 4 14,726 3,681 2,558,530 2015 2 20,000 10,000 263,476 Total 54 379,464 ** 7,027 33,213,687 * Damages as reported on the DOT form 5800.1. It should be noted PHMSA did not have a record of any fatalities in this time period. These may not include all actual damages, such as costs to the environment and valuations for injuries. ** This average is calculated by totaling all release data and dividing by total number of incidents in the last 10 years (it is not the average of averages).
    Forecasting Future Events

    A valid way to predict the number of future derailment events would be to look at the rate of events per volume shipped, potentially also controlling for other factors, over a number of years and project that rate forward based on a forecast of future volume shipped. This was how PHMSA projected future derailments in the HM-251 RIA. However, PHMSA was not able to develop such a forecast for OFL due to resource and data limitations. We would need to map each commodity, in the table of derailments above, to the corresponding Waybill Sample Standard Transportation Commodity Code (STCC Code) in order to obtain the volume of Class 3 flammable liquids shipped by rail per year. In addition, while production forecasts for energy products are available, no such forecast is available for the vast majority of OFL products. Thus, even if PHMSA did estimate a volume-based incident rate, there is no future volume forecast to which this rate can be applied to obtain a forecasted number of events.

    As a result, PHMSA uses a basic model to project future events: we calculate the number of events over 10 past years and project that “rate” forward for the 20-year analysis period. Specifically, we note that 54 events occurred over ten years. The 20-year analysis period is twice as long as the 10-year historic period evaluated, so PHMSA simply multiplies the 54 events by two to obtain an estimate of 108 future release events over 20 years. We spread these events equally over the 20-year analysis period at 5.4 releases per year.

    Event Size and Total Annual Release Estimate

    The 54 events analyzed produced a total quantity spilled of 379,464 gallons of product released, resulting in an average of 7,027 gallons of product released per incident. Combining this figure with the forecasted number of events above (5.4 releases per year) provides an estimated average annual volume of 37,946 gallons released per year (5.4 releases per year multiplied by 7,027 gallons per release). We note that one OFL incident involved a large number of injuries—56 requiring hospitalization and another 139 requiring treatment but no hospitalization—and this incident involved a release from a DOT-105 tank car. This incident was not included in the incident table above because the OFL product was not shipped in a DOT-111. A second event involving the same material, acrylonitrile stabilized, this time in a DOT-111, resulted in 4 non-hospitalized injuries. Such events are evidence of the wide variety of materials being shipped and the different risks they pose to human health and the environment. This particular substance is toxic in addition to being flammable, and hence produces toxic fumes when burned. As a result, medical attention is necessary to treat anyone exposed to the fumes released by fires involving this product. Although the typical release involving OFL is small, for some substances in this hazard class, the impacts on people and the environment may be substantially more severe than for crude and ethanol. For other products the impacts may be fairly benign.

    Estimated Reduction in Quantity of OFLs Released

    In order to estimate the reduction in product released as a result of upgrading OFL tank cars to the DOT-117R/117 standard, PHMSA followed the same procedure and used the same effectiveness rates used in the HM-251 analysis. We calculated the ratio of each car type upgraded by a given year as a percentage of the total OFL fleet. The table of these calculations is presented below.

    Table 19—Other Flammable Liquid Fleet Upgrade Share by Car Type Year 111NJ to 117R
  • %
  • 111J to 117R
  • %
  • 1232NJ to 117R
  • %
  • 1232J to 117R
  • %
  • 111NJ to 117
  • %
  • 111J to 117
  • %
  • 2016 0.00 0.00 0.00 0.00 1.47 0.56 2017 0.00 0.00 0.00 0.00 2.47 0.94 2018 0.00 0.00 0.00 0.00 3.24 1.23 2019 0.00 0.00 0.00 0.00 3.62 1.38 2020 0.00 0.00 0.00 0.00 4.12 1.56 2021 0.00 0.00 0.00 0.00 4.71 1.79 2022 0.00 0.00 0.00 0.00 5.07 1.92 2023 0.00 0.00 0.00 0.00 5.66 2.15 2024 0.00 0.00 0.00 0.00 6.88 2.61 2025 9.12 3.46 1.51 1.01 8.31 3.15 2026 18.25 6.93 3.01 2.02 9.42 3.57 2027 27.37 10.39 4.52 3.03 10.26 3.90 2028 36.50 13.85 6.02 4.04 11.04 4.19 2029 45.62 17.32 7.53 5.05 17.74 6.74 2030 45.62 17.32 7.53 5.05 17.74 6.74 2031 45.62 17.32 7.53 5.05 17.74 6.74 2032 45.62 17.32 7.53 5.05 17.74 6.74 2033 45.62 17.32 7.53 5.05 17.74 6.74 2034 45.62 17.32 7.53 5.05 17.74 6.74 2035 45.62 17.32 7.53 5.05 17.74 6.74

    These figures are multiplied by the corresponding effectiveness rate as pulled from the HM-251 analysis, reproduced below.

     Table 20—HM-251 Effectiveness Rates Percent Effectiveness Rates, Enhanced Jacketed CPC 111 non-jacketed to 1232 w jacket 45.9 CPC non-jacketed to jacketed 31.0 111 jacketed to CPC jacketed 37.6 CPC jacketed to CPC jacketed 1.0 Effectiveness Rates, New DOT-117 111 non-jacketed to AAR 2014 50.4 CPC non-jacketed to AAR 2014 36.8 111 jacketed to AAR 2014 42.8 jacketed 1232 to AAR 2014 16.2

    As a reminder, a retrofit tank car cannot be equipped with a thicker shell, so the DOT 117R standard is the equivalent of a jacketed CPC-1232 with some modest improvements—specifically an improved high capacity pressure relief valve and a bottom outlet valve design that reduces the probability of damage during derailment. Therefore, legacy DOT-111 tank cars that are retrofit improve by the factor represented by the “Effectiveness Rates, Enhanced Jacketed CPC” rows in the table above. These effectiveness rates can be interpreted as reductions in the probability that a tank car will release in a derailment, or the reductions in the expected amount of release product in a derailment. For cars that are retired and replaced with a new tank car, the effectiveness rates includes all the retrofit components—jacket, thermal protection, full height head shields, etc., but also an increase in shell thickness to 9/16”, which further reduces the probability of release. A retired and replaced tank car therefore experiences the higher effectiveness rate presented in the “Effectiveness Rates, New DOT-117” rows in the table above. The products of the upgrade shares by type and the effectiveness rates are summed across rows to obtain an effectiveness rate for the OFL fleet upgrades. The individual effectiveness products and total effectiveness rate are produced in the table below.

    Table 21—Total Effectiveness Rates by Car Type and Type of Upgrade * Year 111NJ to 117R
  • %
  • 111J to 117R
  • %
  • 1232NJ to 117R
  • %
  • 1232J to 117R
  • %
  • 111NJ to 117
  • %
  • 111J to 117
  • %
  • Total
  • effectiveness
  • %
  • 1 0.00 0.00 0.00 0.00 0.74 0.24 0.98 2 0.00 0.00 0.00 0.00 1.24 0.40 1.64 3 0.00 0.00 0.00 0.00 1.63 0.53 2.16 4 0.00 0.00 0.00 0.00 1.83 0.59 2.42 5 0.00 0.00 0.00 0.00 2.07 0.67 2.74 6 0.00 0.00 0.00 0.00 2.38 0.77 3.14 7 0.00 0.00 0.00 0.00 2.55 0.82 3.38 8 0.00 0.00 0.00 0.00 2.86 0.92 3.77 9 0.00 0.00 0.00 0.00 3.47 1.12 4.59 10 4.19 1.30 0.47 0.01 4.19 1.35 11.51 11 8.38 2.60 0.93 0.02 4.75 1.53 18.21 12 12.56 3.91 1.40 0.03 5.17 1.67 24.74 13 16.75 5.21 1.87 0.04 5.56 1.79 31.22 14 20.94 6.51 2.33 0.05 8.94 2.88 41.66 15 20.94 6.51 2.33 0.05 8.94 2.88 41.66 16 20.94 6.51 2.33 0.05 8.94 2.88 41.66 17 20.94 6.51 2.33 0.05 8.94 2.88 41.66 18 20.94 6.51 2.33 0.05 8.94 2.88 41.66 19 20.94 6.51 2.33 0.05 8.94 2.88 41.66 20 20.94 6.51 2.33 0.05 8.94 2.88 41.66 * Some values may not total due to rounding.

    The overall effectiveness rate for upgrading the OFL fleet is higher than that estimated for the crude and ethanol fleet. CPC-1232s make up a smaller portion of the OFL fleet than the crude and ethanol fleet and upgrading legacy DOT-111s produces a greater estimated reduction in the quantity of product released than the more marginal improvements to CPC-1232 cars. However, the retrofit schedule for the OFL fleet is less aggressive than the schedule for the crude and ethanol fleet, and the quantity of product released in these incidents is likely to be much smaller than is typical of crude and ethanol incidents. In the table below, the overall effectiveness rate for upgrading the OFL fleet is multiplied by the expected release quantity per year to obtain a yearly reduction in OFL material released.

    Table 22—Predicted Prevented Spill Volume * Year Number of
  • events
  • Gallons
  • released
  • Effectiveness Reduction in
  • gallons
  • released **
  • 1 5.4 37,946 0.98 371 2 5.4 37,946 1.64 624 3 5.4 37,946 2.16 819 4 5.4 37,946 2.42 917 5 5.4 37,946 2.74 1,041 6 5.4 37,946 3.14 1,192 7 5.4 37,946 3.38 1,282 8 5.4 37,946 3.77 1,432 9 5.4 37,946 4.59 1,740 10 5.4 37,946 11.51 4,366 11 5.4 37,946 18.21 6,911 12 5.4 37,946 24.74 9,388 13 5.4 37,946 31.22 11,848 14 5.4 37,946 41.66 15,809 15 5.4 37,946 41.66 15,809 16 5.4 37,946 41.66 15,809 17 5.4 37,946 41.66 15,809 18 5.4 37,946 41.66 15,809 19 5.4 37,946 41.66 15,809 20 5.4 37,946 41.66 15,809 Total 152,592 * Some values may not total due to rounding. ** These non-monetized estimates are not discounted. OMB and EPA guidelines discuss options for discounting non-monetized effects such as environmental damages to convey effects felt farther in the future are worth less in today's term than those occurred earlier in time (OMB Circular A-4, 2003, Page 36; and, EPA Guidelines for Preparing Economic Analyses, 2000, pages 52-54). The discounted 20-year total would be 56,317 gallons using a 7 discount rate.

    The effectiveness rates for this rule are expected values, and the effect of the rule on any one release may vary widely from the average expected effect. Dividing the total 20-year reduction in gallons released into the total cost of the rule yields a “break-even” cost or damage per gallon figure of $3,409 (using total 20-year costs discounted at 7 or $520,141,136), meaning on average the monetized value of avoided damages from the reduction in gallons released from this rule would need to be about $3,409 per gallon in order for benefits to equal costs.38 For some incidents, the tank car enhancements may eliminate release of the entire contents of the car. Also, we note that at least some of the substances affected by these upgrades pose a much higher immediate risk to human health compared to crude and ethanol. Reducing the likelihood of release of these materials would enhance public safety.

    38 If we use the discounted total 20-year reduction in gallons released for this calculation (56,317 gallons using a 7 discount rate), then the rule yields a break-even cost per gallon figure of about $9,236, meaning that the monetized value of avoided damages from the reduction in gallons released from this rule would need to be about $9,236 per gallon in order for benefits to equal costs.

    7. Conclusion

    The FAST Act instructs the Secretary to make specific regulatory amendments to the aforementioned tank car design standards and phase-out schedule codified in the HM-251 final rule. Since the publication of the FAST Act on December 4, 2015, the text of the HMR differs with the explicit terms of the statute with respect to phase-out schedules, thermal protection blankets, and top fittings protections. The estimated net present value cost of these tank car upgrades is $520 million over 20 years discounted at 7 percent. The implementation of this final rule ensures that all Class 3 flammable liquids are packaged in tank cars meeting improved specifications, thus reducing the likelihood that a train transporting any volume of flammable liquids will release such liquids should it derail. This final rule also minimizes the consequences of an incident should one occur by diminishing the number of tank cars likely to be punctured and the subsequent release of flammable liquids in a derailment. It is necessary and in the public interest to clarify the requirements by rectifying the differences as soon as possible. PHMSA believes that APA notice and comment is unnecessary as it would provide no benefit to the public. Further, PHMSA has no discretion in interpreting the statute; thus public comment would have no impact on the rulemaking. Finally, with regard to Sections 7304 and 7305, the FAST Act instructs the Secretary to act quickly to codify the FAST Act language. Section 7306 has no regulatory mandate, but both PHMSA and FRA are committed to ensuring that the governing regulations align with the FAST Act requirements.

    C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not impose any regulation that has substantial direct effects on States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. While the final rule could act to preempt State, local, and Indian tribe requirements by operation of law, PHMSA is not aware of any such requirements that are substantively different than what is required by the final rule. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    The Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101-5128, contains express preemption provisions (49 U.S.C. 5125) that preempt inconsistent State, local, and Indian tribe requirements, including requirements on the following subjects:

    (1) The designation, description, and classification of hazardous materials;

    (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

    (3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

    (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

    (5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

    This rule addresses items (2) and (5) described above and, accordingly, State, local, and Indian tribe requirements on these subjects that do not meet the “substantively the same” standard will be preempted.39

    39 Federal preemption also may exist pursuant to § 20106 of the former Federal Railroad Safety Act of 1970, repealed, revised, reenacted, and codified at 49 U.S.C. 20106, which provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the section's “essentially local safety or security hazard.”

    Federal Hazardous Materials Transportation Law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of a final rule and not later than two years after the date of issuance. The effective date of Federal preemption is November 14, 2016. This effective date for preemptive effect should not conflict with the overall effective date for this final rule because the regulation of hazardous materials transport in commerce generally preempts State and local requirements. Historically, the States and localities are aware of this preemptive effect and do not regulate in conflict with Federal requirements in these situations.

    D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that have tribal implications. Because this final rule does not have tribal implications, the funding and consultation requirements of Executive Order 13175 do not apply.

    PHMSA is committed to tribal outreach and engaging tribal governments in dialogue. Among other outreach efforts, PHMSA representatives attended the National Joint Tribal Emergency Management Conference on August 11-14, 2015. In the spirit of Executive Order 13175 and consistent with DOT Order 5301.1, PHMSA will be continuing outreach to tribal officials independent of our assessment of the direct tribal implications.

    E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies

    Section 603 of the Regulatory Flexibility Act (RFA) requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553 to publish a general notice of proposed rulemaking for any proposed rule. Similarly, Section 604 of the RFA requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after being required to publish a general notice of proposed rulemaking. Because the actions taken in this final rule address congressional mandates that instruct the Secretary to issue conforming regulatory amendments immediately or soon after the FAST Act's date of enactment, PHMSA finds that due and timely execution of agency functions would be impeded by the procedures of public notice that are normally required by the APA. Therefore, PHMSA finds that public notice and comment would be contrary to the public interest and that good cause exists to amend the regulations without such procedures. As prior notice and comment under 5 U.S.C. 553 are not required to be provided in this situation, the analyses in 5 U.S.C. 603 and 604 are also not required.

    F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $155 million or more, adjusted for inflation, to either State, local, or tribal governments, in the aggregate, or to the private sector in any one year.

    G. Paperwork Reduction Act

    There are no new information collection requirements in this final rule.

    H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

    I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the environmental impacts of proposed actions in their decisionmaking. On May 8, 2015, PHMSA published a final Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) as part of the HM-251 final rule (see Section X, Part G). This EA described the following: (1) The need for the action, (2) the alternatives considered, (3) the environmental impacts of the alternatives and selected action, and (4) the agencies consulted. Given that the revisions adopted in the FAST Act on December 4, 2015 are an expansion of the existing requirements, PHMSA is incorporating that EA by reference consistent with 40 CFR 1502.21, and updating the alternatives and impacts to discuss the FAST Act changes.

    1. Need for the Action

    As described in detail above, the FAST Act includes the “Hazardous Materials Transportation Safety Improvement Act of 2015” at Sections 7001 through 7311, which instructed the Secretary to make specific regulatory amendments to existing Federal regulations related to tank car design standards and the DOT-111 phase-out schedule codified in the HM-251 final rule. The mandated amendments are non-discretionary, and this action is a response to those mandates.

    The need for the requirements in this rulemaking is consistent with that in the HM-251 final rule EA. Specifically, both the HM-251 final rule and this final rule are designed to lessen the consequences of train accidents involving the unintentional release of flammable liquids. The purpose of the regulations for enhanced tank car standards and operational controls is to prevent releases by keeping flammable liquids, including crude oil and ethanol, in rail tank cars and to mitigate the severity of incidents should they occur.

    2. Alternatives Considered

    As described in section I.A-D above, PHMSA is updating its EA to include discussion of FAST Act mandated changes as described in section I.A through I.D above.

    3. Environmental Impacts of Action

    As described in the HM-251 final rule EA, the phasing-out of DOT-111 tank cars in flammable liquid service will reduce risk of release because of the improved integrity and safety features of the DOT-117. The changes in the FAST Act will increase the number of tank cars needing to be retrofitted (HHFT vs. flammable liquid tank cars), require thermal protection blanketing on certain tank cars, and require top fittings and pressure release protections. The increased number of tank cars needing to be retrofitted will further reduce risk of release because the improved integrity and safety features of the DOT-117R will be applied to a wider universe.

    In determining our cost calculations in the HM-251 RIA, PHMSA assumed that in order to meet the performance standard specified in § 179.18, each tank car built to meet the DOT-117 and each non-jacketed tank car retrofitted to meet the DOT-117R would do so using a thermal protection blanket.40 Based on this assumption, only the tank cars transporting flammable liquids that were outside the scope of the HHFT definition, which are now subject to the requirements of the FAST Act, will be impacted by this change. Lastly, all new construction and retrofitted tank cars will now benefit from top fittings and pressure relief valve protection. These additional cars will realize the benefits of improved integrity and safety features. With the addition of more tank cars to be retrofitted and with enhanced safety features, this action will further reduce risk of release, and thereby reduce the potential for adverse environmental effects, beyond the HM-251 final rule because of the improved integrity and safety features of the DOT-117.

    40See HM-251 Final Rule RIA, p. 172-173.

    It should be noted that the FAST Act provisions will result in the manufacturing of some new tank cars to replace retirements. The FAST Act will also increase the number of tank cars subject to this retrofit requirement. Increased manufacture of replacement rail tank cars and the retrofitting of an increased amount of tank cars could nevertheless result in greater short-term release of greenhouse gases and use of resources needed to make the new tank cars or retrofit existing tank cars.41 PHMSA, however, concluded that the possibility of increased (yet temporary) greenhouse gases and resource use is far outweighed by the benefits of increased safety and integrity of each railcar and each train, as well as the decreased risk of release of crude oil and ethanol to the environment.

    41 Greenhouse gas emissions from industry primarily come from burning fossil fuels for energy as well as greenhouse gas emissions from certain chemical reactions necessary to produce goods from raw materials. Thus increased tank car manufacturing and replacement could result in increased greenhouse gases. See https://www3.epa.gov/climatechange/ghgemissions/sources/industry.html.

    PHMSA also recognizes that increased weight of a larger population of affected tank cars due to the requirements in the FAST Act may result in somewhat greater use of fuel and in turn greater release of air pollutants, including carbon dioxide.42 However, PHMSA notes that the improved integrity of the tank cars being designed to reduce the risk of release of flammable liquids to the environment positively outweighs a relatively small increase in air pollution due to fuel emissions.

    42 Greenhouse gas emissions from transportation primarily come from burning fossil fuel for our cars, trucks, ships, trains, and planes. See https://www3.epa.gov/climatechange/ghgemissions/sources/transportation.html.

    4. Agencies Consulted

    PHMSA published the HM-251 final rule in consultation with FRA.

    5. Conclusion Finding of No Significant Impact

    Given that the revisions adopted by the FAST Act on December 4, 2015 are an expansion of the existing requirements, PHMSA specifically focuses on the impacts these changes will have related to the baseline safety level set by the HM-251 final rule. In the HM-251 final rule EA, PHMSA concluded:

    The provisions of this rule build on current regulatory requirements to enhance the transportation safety and security of shipments of hazardous materials transported by rail, thereby reducing the risks of release of crude oil and ethanol and consequent environmental damage. PHMSA has calculated that this rulemaking will decrease current risk of release of crude oil and ethanol to the environment. Therefore, PHMSA finds that there are no significant environmental impacts associated with this final rule.43

    43See HM-251 Final Rule, 80 FR at 26743.

    PHMSA finds that this same conclusion applies to this action and that there are no significant environmental impacts associated with this final rule.

    J. Privacy Act

    Anyone may search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    K. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609 (“Promoting International Regulatory Cooperation”), agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, regulatory approaches developed through international cooperation can provide equivalent protection to standards developed independently while also minimizing unnecessary differences.

    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

    PHMSA participates in the establishment of international standards to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with Executive Order 13609 and PHMSA's obligations under the Trade Agreement Act, as amended. In addition, the FAST Act revises the U.S. retrofit schedule to further align with tank car requirements that Transport Canada has already implemented. This final rule would amend the HMR to further align with Transport Canada's corresponding Transportation of Dangerous Goods Regulations. (See 49 U.S.C. 5120(b).)

    L. Executive Order 13211

    Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action” [66 FR 28355; May 22, 2001]. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, advance NPRM, and NPRM) that: (1)(i) Is a significant regulatory action under Executive Order 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

    Although this is a significant regulatory action under Executive Order 12866, PHMSA has evaluated this action in accordance with Executive Order 13211 and has determined this action will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, PHMSA has determined this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211.

    List of Subjects 49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.

    49 CFR Part 179

    Hazardous materials transportation, Incorporation by reference, Railroad safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, we amend 49 CFR chapter I as follows:

    PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 1. The authority citation for part 173 continues to read as follows: Authority:

    49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.

    2. In § 173.241, revise paragraph (a) introductory text and paragraph (a)(1) to read as follows:
    § 173.241 Bulk packagings for certain low hazard liquid and solid materials.

    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 112, 114, 115, 117, or 120 tank car tanks; Class 106 or 110 multi-unit tank car tanks; and AAR Class 203W, 206W, and 211W tank car tanks. Additional operational requirements apply to high-hazard flammable trains (see § 171.8 of this subchapter) as prescribed in § 174.310 of this subchapter. Except as otherwise provided in this section, DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized to transport Class 3 (flammable) liquids in Packing Group III, unless retrofitted to the DOT Specification 117R retrofit standards or the DOT Specification 117P performance standards provided in part 179, subpart D of this subchapter.

    (1) DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized to transport Class 3 (flammable liquids) unless retrofitted prior to the date in the following table:

    Material Jacketed or
  • non-jacketed
  • tank car
  • DOT-111
  • not authorized
  • on or after
  • DOT-111
  • built to the
  • CPC-1232 not
  • authorized on or after
  • Class 3, PG III (flammable liquid) material Non-jacketed May 1, 2029 May 1, 2029. Jacketed May 1, 2029 May 1, 2029. Note: For unrefined petroleum products (§ 173.41) and ethanol, see §§ 173.242 and 173.243 as appropriate.
    3. In § 173.242, revise paragraph (a) introductory text and paragraph (a)(1) to read as follows:
    § 173.242 Bulk packagings for certain medium hazard liquids and solids, including solids with dual hazards.

    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 112, 114, 115, 117, or 120 tank car tanks; Class 106 or 110 multi-unit tank car tanks and AAR Class 206W tank car tanks. Additional operational requirements apply to high-hazard flammable trains (see § 171.8 of this subchapter) as prescribed in § 174.310 of this subchapter. Except as otherwise provided in this section, DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized to transport unrefined petroleum products, ethanol, and other Class 3 (flammable) liquids in Packing Group II or III, unless retrofitted to the DOT Specification 117R retrofit standards, or the DOT Specification 117P performance standards provided in part 179, subpart D of this subchapter.

    (1) DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized for transport of Class 3 flammable liquids unless retrofitted prior to the dates corresponding to the specific material in the following table:

    Material Jacketed or
  • non-jacketed
  • tank car
  • DOT-111
  • not authorized
  • on or after
  • DOT-111
  • built to the
  • CPC-1232 not
  • authorized on or after
  • Unrefined petroleum product Non-jacketed January 1, 2018 April 1, 2020. Jacketed March 1, 2018 May 1, 2025. Ethanol Non-jacketed May 1, 2023 July 1, 2023. Jacketed May 1, 2023 May 1, 2025. Class 3, PG II or III (flammable liquid) material other than unrefined petroleum products and ethanol Non-jacketed May 1, 2029 May 1, 2029. Jacketed May 1, 2029 May 1, 2029.
    4. In § 173.243, revise paragraph (a) introductory text and paragraph (a)(1) to read as follows:
    § 173.243 Bulk packaging for certain high hazard liquids and dual-hazard materials which pose a moderate hazard.

    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 112, 114, 115, 117, or 120 fusion-welded tank car tanks; and Class 106 or 110 multi-unit tank car tanks. Additional operational requirements apply to high-hazard flammable trains (see § 171.8 of this subchapter) as prescribed in § 174.310 of this subchapter. Except as otherwise provided in this section, DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized to transport Class 3 (flammable liquids) in Packing Group I, unless retrofitted to the DOT Specification 117R retrofit standards or the DOT Specification 117P performance standards provided in part 179, subpart D of this subchapter.

    (1) DOT Specification 111 tank cars and DOT Specification 111 tank cars built to the CPC-1232 industry standard are no longer authorized for transport of Class 3 (flammable liquids) unless retrofitted prior to the dates corresponding to the specific material in the following table:

    Material Jacketed or
  • non-jacketed
  • tank car
  • DOT-111
  • not authorized
  • on or after
  • DOT-111
  • built to the
  • CPC-1232 not
  • authorized on or after
  • Unrefined petroleum products Non-jacketed January 1, 2018 April 1, 2020. Jacketed March 1, 2018 May 1, 2025. Class 3, PG I (flammable liquid) other than unrefined petroleum products Non-jacketed May 1, 2025 May 1, 2025. Jacketed May 1, 2025 May 1, 2025.
    PART 179—SPECIFICATIONS FOR TANK CARS 5. The authority citation for part 179 continues to read as follows: Authority:

    49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

    6. Revise § 179.202-6 to read as follows:
    § 179.202-6 Thermal protection system.

    The DOT Specification 117 tank car must have a thermal protection system. The thermal protection system must:

    (a) Conform to § 179.18 of this part;

    (b) Be equipped with a thermal protection blanket with at least 1/2-inch-thick material that meets § 179.18(c) of this part; and

    (c) Include a reclosing pressure relief device in accordance with § 173.31 of this subchapter.

    7. In § 179.202-12, revise the section heading to read:
    § 179.202-12 Performance standard requirements (DOT-117P).
    8. In § 179.202-13, revise paragraphs (e) and (h) to read as follows:
    § 179.202-13 Retrofit standard requirements (DOT-117R).

    (e) Thermal protection system. (1) The DOT Specification 117R tank car must have a thermal protection system. The thermal protection system must conform to § 179.18 of this part and include a reclosing pressure relief device in accordance with § 173.31 of this subchapter.

    (2) A non-jacketed tank car modified to the DOT Specification 117R must be equipped with a thermal protection blanket with at least 1/2-inch-thick material that meets § 179.18(c) of this part.

    (h) Top fittings protection—(1) Protective housing. Except as provided in §§ 179.202-13(h)(2) and (3) of this paragraph, top fittings on DOT Specification 117R tank cars must be located inside a protective housing not less than 12-inch in thickness and constructed of a material having a tensile strength not less than 65 kpsi and must conform to all of the following conditions:

    (i) The protective housing must have a height exceeding the tallest valve or fitting which requires protection and the height of a valve or fitting within the protective housing must be kept to the minimum size compatible to allow for proper operation.

    (ii) The protective housing or cover may not reduce the flow capacity of a pressure relief device below the minimum required.

    (iii) The protective housing must provide a means of drainage with a minimum flow area equivalent to six (6) 1-inch diameter weep holes.

    (iv) When connected to the nozzle or fitting cover plate, and subject to a horizontal force applied perpendicular to and uniformly over the projected plane of the protective housing, the tensile connection strength of the protective housing must be designed to be—

    (A) no greater than 70 percent of the nozzle to tank tensile connection strength;

    (B) no greater than 70 percent of the cover plate to nozzle connection strength; and

    (C) no less than either 40 percent of the nozzle to tank tensile connection strength or the shear strength of twenty (20) 12-inch bolts.

    (2) Pressure relief devices. (i) The pressure relief device(s) must be located inside the protective housing, unless space does not allow for placement within a housing. If multiple pressure relief devices are installed, no more than one (1) may be located outside of a protective housing.

    (ii) The height of a pressure relief device located outside of a protective housing in accordance with paragraph (h)(2)(i) of this section may not exceed the tank car jacket by more than 12 inches.

    (iii) The highest point of a closure of any unused pressure relief device nozzle may not exceed the tank car jacket by more than six (6) inches.

    (3) Alternative. As an alternative to the protective housing requirements in paragraph (h)(1) of this section, the tank car may be equipped with a system that prevents the release of contents from any top fitting under accident conditions where any top fitting may be sheared off.

    Issued in Washington, DC, on August 10, 2016, under authority delegated in 49 CFR part 1.97. Marie Therese Dominguez, Administrator, Pipeline and Hazardous Materials Safety Administration.
    [FR Doc. 2016-19406 Filed 8-12-16; 8:45 am] BILLING CODE 4910-60-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 160301165-6692-02] RIN 0648-BF88 Fisheries of the Northeastern United States; Spiny Dogfish Fishery; 2016-2018 Specifications AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule implements catch limits, commercial quotas, and possession limits for the spiny dogfish fishery for fishing years 2016-2018. This action reduces catch limits for fishing years 2016-2018, but increases the spiny dogfish trip limit. This action is necessary to ensure that overfishing does not occur and is intended to help the spiny dogfish fishery better achieve optimum yield.

    DATES:

    Effective on August 15, 2016.

    ADDRESSES:

    Copies of the specifications, including the Environmental Assessment and Regulatory Impact Review (EA/RIR), and other supporting documents for the action are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The framework is also accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    William Whitmore, Fishery Policy Analyst, (978) 281-9182.

    SUPPLEMENTARY INFORMATION:

    Background

    The Atlantic spiny dogfish (Squalus acanthias) fishery is jointly managed by the New England and Mid-Atlantic Fishery Management Councils through the Spiny Dogfish Fishery Management Plan (FMP). The Atlantic States Marine Fisheries Commission also manages the spiny dogfish fishery in state waters from Maine to North Carolina through an interstate plan. Additional information on the FMP is available at http://www.mafmc.org/fisheries/fmp/dogfish. Information on the interstate FMP can be reviewed at http://www.asmfc.org/species/spiny-dogfish.

    On June 22, 2016, we proposed new spiny dogfish specifications (81 FR 40650), which include catch limits, commercial quotas, and possession limits for fishing years 2016-2018. Additional information on how specifications are set can be reviewed through the FMP links provided above or the proposed rule for this action.

    Fishing Year 2016-2018 Specifications

    We are implementing the acceptable biological catch (ABC) and annual catch limits (ACLs) outlined in our proposed rule (see Table 1 below).

    Table 1—2016-2018 ACL and Commercial Quota Specifications for the Spiny Dogfish Fishery Fishing year ACL (lb) ACL (mt) Commercial
  • quota (lb)
  • Commercial
  • quota (mt)
  • Change
  • from 2015
  • (percent)
  • 2016 51,923,272 23,552 40,360,761 18,307 −20 2017 50,662,228 22,980 39,099,717 17,735 −23 2018 49,758,333 22,570 38,195,822 17,325 −25

    Although the stock remains healthy and is not overfished or subject to overfishing, the survey index of spawning stock biomass has recently decreased. This decline was not unexpected and is primarily due to (1) high variance in the survey, and (2) poor spiny dogfish pup production (i.e., recruitment to the dogfish stock). These specifications are consistent with the best scientific information available and the Council's and their Scientific and Statistical Committee recommendations. Additional information that explains the status of the spiny dogfish stock and describes the 2016-2018 catch limits is available in the proposed rule and is not repeated here.

    Trip Limit Increase

    We are approving a trip limit increase from 5,000 lb (2,268 kg) to 6,000 lb (2,722 kg). Because of the proposed harvest reductions (see Table 1), the Councils initially recommended maintaining the current spiny dogfish trip limit of 5,000 lb (2,268 kg). However, after recognizing that the reduced 2016-2018 quotas are still significantly higher than landings in recent years, both Councils and the Commission requested that we increase the trip limit to 6,000 lb (2,722 kg). We specifically solicited public comment on this request in the proposed rule (81 FR 40650; June 22, 2016). We received several comments in support of the trip limit increase. There were two comments opposed to a trip limit increase that provided no specific detail on why the increase would be harmful. Considering this, and understanding that the stock remains healthy, underharvested, and has in place rigid management controls to prevent exceeding the commercial quota, we have elected to increase the trip limit.

    Comments and Responses

    We received five public comments on the proposed rule during the 15-day comment period.

    Comment 1: Two commenters suggested that the trip limit should be reduced to protect the stock and prevent the fishery from becoming overfished.

    Response 1: As explained in the proposed rule, the ACLs are being reduced in response to a recent stock assessment update that shows anticipated declines in stock size following a few years of lower pup production. Despite the reduced ACLs, the fishery is not considered overfished or subject to overfishing. The FMP provides authority to close the fishery if the commercial quota will be reached as well as a pound-for-pound overage repayment system should catch in any one year exceed the established quota. Female spawning stock biomass is 6 percent above the target maximum sustainable yield biomass proxy of 351 million lb (159,288 mt). Fishing mortality remains low and the fishery is underutilized—it is not at risk of overfishing or becoming overfished. As a result, it is not necessary to reduce the trip limit to keep the fishery within its catch limits. Should the increased trip limits result in higher harvests than recent years, appropriate management tools are available to prevent overharvesting. In addition, decreasing the trip limit would make it less likely that the fishery could achieve optimum yield.

    Comment 2: Both Councils and Massachusetts Division of Marine Fisheries requested that we increase the spiny dogfish trip limit.

    Response 2: We agree. This healthy stock remains greatly underutilized. Increasing the trip limit provides an opportunity for the fishery to better harvest optimum yield and provide increased revenue. For these reasons, in addition to those detailed above, we are increasing the trip limit.

    Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that the 2016-2018 specifications to the FMP are necessary for the conservation and management of the spiny dogfish fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. Maintaining the 30-day delay in effective date is contrary to the public interest for several reasons. First, increasing the dogfish possession limit from 5,000 lb (2,268 kg) to 6,000 lb (2722 kg) will enhance fishing opportunities and the change is anticipated to increase landings and associated fishing revenue for members of the fishing industry. Therefore, this final rule relieves an economic hardship while allowing the fishery to more effectively achieve optimum yield. Delaying this action for 30 days would result in foregone economic benefits that could not be recovered. Second, the Mid-Atlantic Fishery Management Council did not submit these Specifications and the accompanying environmental assessment until March 11, 2016, making it virtually impossible to solicit public comment through a proposed rule and implement a final rule prior to the start of the fishing year, which began on May 1, 2016. Therefore, this delay has already resulted in missed fishing opportunities and revenue for fishermen and implementation should not be further delayed. Third, keeping an unnecessarily restrictive possession limit would result in fishermen wastefully discarding fish that could have been retained with the higher possession limit approved under this rule. Maintaining the lower catch limit and requiring unnecessary discarding contradicts the best available science and would prevent the fishery from achieving optimum yield. Lastly, because this rule imposes no further restrictions on the fishery that would alter existing fishing practices or require affected entities to acquire additional equipment, there is no need to delay implementation of this action to provide affected entities additional time to prepare for or comply with the implementation of this action. For these reasons, a 30-day delay in effective date is both contrary to the public interest and unnecessary.

    This final rule has been determined to be not significant for the purpose of E.O. 12866.

    A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments. A copy of this analysis is available (see ADDRESSES).

    A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    A description of the final rule, why it is being considered, and the legal basis for this rule were contained in the preamble of the proposed rule for this action (81 FR 40650; June 22, 2016) and are not repeated here. The public did not provide any comments on the IRFA; therefore, there are no changes made in this final rule with regards to the economic analyses and impacts.

    Description and Estimate of Number of Small Entities to Which the Rule Would Apply

    This final rule would affect fishing vessels, including commercial fishing entities. In 2014, there were 2,473 vessels that held an open access spiny dogfish permit. Cross-referencing those permits with vessel ownership data revealed that 1,830 business entities owned those vessels.

    On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act compliance purposes (80 FR 81194). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) previous standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors, respectively, of the U.S. commercial fishing industry.

    An IRFA was developed for this regulatory action prior to July 1, 2016, using SBA's previous size standards. Under the SBA's size standards, 18 of the 1,830 (about 1 percent) spiny dogfish fishing entities were determined to be large. Of the 1,812 entities deemed to be small business entities by the SBA criteria, 570 were finfish, 580 were shellfish, and 244 were for-hire small entities. Further, 418 small entities had no revenue in 2014.

    NMFS has qualitatively reviewed the analyses prepared for this final rule using the new size standard. The new standard could result in a few more commercial shellfish businesses being considered small (due to the increase in small business size standards). In addition, the new standard could result in fewer commercial finfish businesses being considered small (due to the decrease in size standards). On average, for small entities, spiny dogfish is responsible for a small fraction of total landings, and active participants derive a small share of gross receipts from the spiny dogfish fishery. As a result, it is unlikely that these size-standard changes would have any impact on the previously conducted analyses.

    Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of This Final Rule

    This final rule does not introduce any new reporting, recordkeeping, or other compliance requirements.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

    These specifications include management measure alternatives for (1) the spiny dogfish ACLs and associated commercial quotas, and (2) spiny dogfish trip limits.

    We do not anticipate any significant economic impacts on small entities to result from this action. While there is an overall reduction in the ACLs, analyses for this action indicate that spiny dogfish landings have been substantially less than the specifications we are approving for fishing years 2016-2018. It is unlikely that potential revenue losses would be directly equal to with the ACL reductions. By contrast, maintaining the status quo ACL is inconsistent with the stated objectives because it does not represent the best available science or the goals and objectives of the FMP.

    Regarding spiny dogfish trip limits, this final rule increases trip limits from 5,000 lb (2,268 kg) to 6,000 lb (2,722 kg). In general, higher trip limits could result in greater immediate revenue per trip. There is some risk that increasing trip limits could increase the potential for an abbreviated season if the quota or processing capacity is reached. Also, it is possible that a large trip limit increase could lower ex-vessel prices and/or make prices more unstable. Given the low overall demand for spiny dogfish, trip limits may not have a large effect on overall revenue across the fishery. Therefore, increasing the trip limit may help minimize economic impacts, but only if prices remain relatively stable and demand increases.

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (GARFO), and the compliance guide, i.e., permit holder letter, will be sent to all holders of permits for the skate fishery. The guide and this final rule will be posted or publically available on the GARFO Web site (see ADDRESSES).

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 9, 2016. Paul Doremus, Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.235, revise paragraph (a)(1) to read as follows:
    § 648.235 Spiny dogfish possession and landing restrictions.

    (a) * * *

    (1) Possess up to 6,000 lb (2,722 kg) of spiny dogfish per trip; and

    [FR Doc. 2016-19342 Filed 8-12-16; 8:45 am] BILLING CODE 3510-22-P
    81 157 Monday, August 15, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket Number EERE-2013-BT-STD-0033] RIN 1904-AD02 Energy Conservation Program: Energy Conservation Standards for Portable Air Conditioners AGENCY:

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

    ACTION:

    Reopening of public comment period.

    SUMMARY:

    On June 13, 2016, the U.S. Department of Energy (DOE) published in the Federal Register a notice of proposed rulemaking (NOPR) for portable air conditioners. 81 FR 38398. The notice provided opportunity for submitting written comments, data, and information by August 12, 2016. DOE received a request from the Association of Home Appliance Manufacturers (AHAM), dated July 21, 2016, to extend the comment period until December 1, 2016.

    DATES:

    The comment period for the proposed rule published on June 13, 2016 (81 FR 38398), is reopened. DOE will accept comments, data, and information regarding this rulemaking received no later than September 26, 2016.

    ADDRESSES:

    Instructions: Any comments submitted must identify the NOPR for Energy Conservation Standards for Portable Air Conditioners, and provide docket number EERE-2013-BT-STD-0033 and/or regulatory information number (RIN) number 1904-AD02. 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] Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

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

    4. Hand Delivery/Courier: The Appliance and Equipment Standards Program Staff U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., 6th Floor, Washington, DC 20024. Telephone: (202) 586-6636. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

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

    A link to the docket Web page can be found at: https://www.regulations.gov/docket?D=EERE-2013-BT-STD-0033. This Web page contains a link to the docket for this document on the www.regulations.gov site. The www.regulations.gov Web page contains simple instructions on how to access all documents, including public comments, in the docket.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-0371. Email: [email protected]

    Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, Mailstop GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Telephone: 202-586-1777; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On June 13, 2016, DOE published in the Federal Register a notice of proposed rulemaking (NOPR) for portable air conditioners. 81 FR 38398. The NOPR provided opportunity for submitting written comments, data, and information by August 12, 2016. DOE received a request from AHAM, dated July 21, 2016, to extend the comment period to December 1, 2016. AHAM and its members stated that they need more time to test a sufficient number of products using the recently published portable AC test procedure in order to provide substantive comments to this rulemaking. A reopening of the comment period would allow additional time that DOE believes is sufficient for AHAM and its members and other interested parties to test existing models to the test procedure, examine the data, information, and analysis presented in the portable air conditioner Technical Support Document, gather any additional data and information to address the proposed standards, and submit comments to DOE.

    AHAM's request can be found at: https://www.regulations.gov/document?D=EERE-2013-BT-STD-0033-0024. In view of the request DOE has determined that a 45-day extension of the public comment period is appropriate. The comment period is reopened until September 26, 2016. DOE further notes that any submissions of comments or other information submitted between the original comment end date and the reopening of the comment period will be deemed timely filed.

    Issued in Washington, DC, on August 8, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-19356 Filed 8-12-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket No. EERE-2016-BT-STD-0022] RIN 1904-AD69 Energy Conservation Program: Energy Conservation Standards for Uninterruptible Power Supplies; Correction AGENCY:

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

    ACTION:

    Notice of proposed rulemaking (NOPR); correction.

    SUMMARY:

    The U.S. Department of Energy (DOE) published a document in the Federal Register on August 5, 2016, concerning a notice of proposed rulemaking and announcement of public meeting regarding energy conservation standards for uninterruptible power supplies. 81 FR 52196. The NOPR provided that the public meeting would be held on September 9, 2016. However, due to a scheduling conflict amongst stakeholders, DOE is changing the date of the public meeting to Friday, September 16, 2016, beginning at 9:30 a.m. All other dates, including the date that the comment period closes, remain unchanged.

    DATES:

    This correction is effective August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Jeremy Dommu, U.S. Department of Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 586-9870. Email: [email protected]

    Correction

    In the Federal Register published on August 5, 2016, (81 FR 52196), in FR Doc. 2016-18446, the following correction should be made:

    On page 52196, under the DATES section, Meeting, is corrected to read:

    Meeting: DOE will hold a public meeting on Friday, September 16, 2016, from 9:30 a.m. to 2:00 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section VII, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.

    Issued in Washington, DC, on August 5, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-19102 Filed 8-12-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3991; Airspace Docket No. 15-ANM-13] Proposed Amendment of Class D and E Airspace; Eugene, OR, and Corvallis, OR AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E airspace designated as an extension to a Class D or E surface airspace area, and Class E airspace upward from 700 feet above the surface at Mahlon Sweet Field Airport, Eugene, OR, to accommodate airspace redesign. Class E airspace extending upward from 700 feet above the surface at Mahlon Sweet Field Airport also would be amended to remove reference to the Corvallis Municipal Airport by creating a stand-alone airspace designation for Corvallis Municipal Airport. Additionally, this proposal would update the airport reference points for these airports in Class D and E airspace, as well as remove the Notice to Airmen (NOTAM) requirement noted in Class E surface area airspace. Airspace redesign is necessary for the safety and management of Instrument Flight Rules (IFR) operations within the National Airspace System.

    DATES:

    Comments must be received on or before September 29, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-3991; Airspace Docket No. 15-ANM-13, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3991/Airspace Docket No. 15-ANM-13.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.regulations.gov.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace designated as an extension to a Class D or Class E surface area, and Class E airspace extending upward from 700 feet above the surface at Mahlon Sweet Field Airport, Eugene, OR. The Class E surface extension to the north would be slightly modified to contain aircraft using the VOR-A approach, and the extension to the south would be enlarged to contain aircraft using the RNP (RNAV) Z instrument approaches as they descend below 1,000 feet above the surface. Class E airspace extending upward from 700 feet above the surface would be reduced to the northeast and west of the airport, to only that area necessary to contain IFR arrival aircraft, descending below 1,500 feet above the surface, and IFR departure aircraft, until reaching 1,200 feet above the surface, and the Class E airspace extending upward from 1,200 feet above the surface would be revoked, as this airspace area is provided by the Bend, OR Class E En Route airspace area, and duplication is not necessary.

    This action also would create stand-alone Class E airspace extending upward from 700 feet above the surface for Corvallis Municipal Airport, Corvallis, OR, thereby removing reference to Corvallis Municipal Airport from the Mahlon Sweet Field Airport airspace designation. The overall Class E airspace area near Corvallis Municipal Airport would remain generally the same, with a slight reduction north, and a slight enlargement west of the airport. The geographic coordinates of these airports would be updated for all Class D and Class E airspace areas.

    Class D and E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR Part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 5000 Class D Airspace. ANM OR D Eugene, OR [Modified] Mahlon Sweet Field Airport, OR (Lat. 44°07′29″ N., long. 123°12′43″ W.)

    That airspace extending upward from the surface to and including 2,900 feet MSL within a 4.6-mile radius of Mahlon Sweet Field Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Designated as Surface Areas. ANM OR E2 Eugene, OR [Modified] Mahlon Sweet Field Airport, OR (Lat. 44°07′29″ N., long. 123°12′43″ W.)

    That airspace extending upward from the surface within a 4.6-mile radius of Mahlon Sweet Field Airport.

    Paragraph 6004 Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area. ANM OR E4 Eugene, OR [Modified] Mahlon Sweet Field Airport, OR (Lat. 44°07′29″ N., long. 123°12′43″ W.)

    That airspace extending upward from the surface within 3 miles west and 2 miles east of the Mahlon Sweet Field Airport 008° bearing, extending from the 4.6-mile radius of the airport to 6.8 miles north of the airport, and within the area bounded by the airport 142° bearing clockwise to the airport 213° bearing, extending from the 4.6-mile radius to 13.5 miles south of the airport, and within the area bounded by the airport 213° bearing clockwise to the airport 226° bearing, extending from the 4.6-mile radius to 14 miles southwest of the airport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM OR E5 Corvallis, OR [New] Corvallis Municipal Airport, OR (Lat. 44°29′50″ N., long. 123°17′ 22″ W.)

    That airspace extending upward from 700 feet above the surface within a 6-mile radius of Corvallis Municipal Airport, and 2.4 miles each side of the airport 007° bearing, extending from the 6-mile radius to 12.4 miles north of the airport, and 2.6 miles each side of the airport 104° bearing extending from the 6-mile radius to 7.1 miles east of the airport, and 2 miles each side of the airport 188° bearing extending from the 6-mile radius to 7.1 miles south of the airport.

    ANM OR E5 Eugene, OR [Modified] Mahlon Sweet Field Airport, OR (Lat. 44°07′29″ N., long. 123°12′43″ W.)

    That airspace extending upward from 700 feet above the surface within a 6-mile radius of Mahlon Sweet Field Airport, and that airspace within the area bounded by the airport 098° bearing clockwise to the airport 138° bearing, extending from the 6-mile radius to 18.3 miles southeast of the airport, and within the area bounded by the airport 138° bearing clockwise to the 170° bearing, extending from the 6-mile radius to 13.5 miles southeast of the airport, and within the area bounded by the airport 170° bearing clockwise to the 234° bearing, extending from the 6-mile radius to 18.3 miles southwest of the airport, and that airspace within 3.6 miles east and 8.5 miles west of the airport 008° bearing, extending from the 6-mile radius to 16 miles north of the airport.

    Issued in Seattle, Washington, on August 4, 2016. Byron Chew, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-19114 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3992; Airspace Docket No. 15-ANM-14] Proposed Amendment of Class E Airspace, Albany, OR AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class E airspace at Albany Municipal Airport, Albany, OR. Advances in Global Positioning System (GPS) mapping accuracy and a reliance on precise geographic coordinates to define airport and airspace reference points have made airspace redesign necessary for the safety and management of Instrument Flight Rules (IFR) operations.

    DATES:

    Comments must be received on or before September 29, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-3992; Airspace Docket No. 15-ANM-14, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3992/Airspace Docket No. 15-ANM-14.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E5 airspace extending upward from 700 feet above the surface at Albany Municipal Airport, Albany, OR. Controlled airspace would extend to within a 6.7-mile radius of the airport to accommodate IFR departures up to 1,200 feet above the surface; would include a small extension to the southwest to accommodate IFR arrivals below 1,500 feet above the surface; and a segment east of longitude 123° would be removed, as there are no IFR operations within that area. The FAA found these modifications necessary for the safety and management of IFR operations at the airport, while preserving the navigable airspace for aviation.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures

    (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR Part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM OR E5 Albany, OR [Modified] Albany Municipal Airport, OR (Lat. 44°38′16″ N., Long. 123°03′34″ W.)

    That airspace extending upward from 700 feet above the surface, within a 6.7-mile radius of Albany Municipal Airport, beginning at the 158° bearing from the airport clockwise to the 022° bearing, thence to the point of beginning, and that airspace 1.4 miles each side of the 230° bearing from the airport extending from the 6.7-mile radius to 8.5 miles southwest of the airport.

    Issued in Seattle, Washington, on August 5, 2016. Sam Shrimpton, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-19116 Filed 8-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF JUSTICE 28 CFR Parts 0 and 44 [CRT Docket No. 130; AG Order No. 3726-2016] RIN 1190-AA71 Standards and Procedures for the Enforcement of the Immigration and Nationality Act AGENCY:

    Civil Rights Division, Department of Justice.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Justice (Department) proposes to revise regulations implementing a section of the Immigration and Nationality Act concerning unfair immigration-related employment practices. The proposed revisions are appropriate to conform the regulations to the statutory text as amended, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination jurisprudence, reflect changes in existing practices (e.g., electronic filing of charges), reflect the new name of the office within the Department charged with enforcing this statute, and replace outdated references.

    DATES:

    Comments must be submitted on or before September 14, 2016. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of the day.

    ADDRESSES:

    You may submit written comments, identified by Docket No. CRT 130, by ONE of the following methods:

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

    Mail: 950 Pennsylvania Avenue NW—NYA, Suite 9000, Washington, DC 20530.

    Hand Delivery/Courier: 1425 New York Avenue, Suite 9000, Washington, DC 20005.

    Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. For additional details on submitting comments, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 (TTY).

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    The anti-discrimination provision of the Immigration and Nationality Act, section 274B, codified at 8 U.S.C. 1324b, was enacted by Congress as part of the Immigration Reform and Control Act of 1986, Public Law 99-603, to prohibit certain unfair immigration-related employment practices. Congress provided for the appointment of a Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel) to enforce this provision. Congress has amended 8 U.S.C. 1324b several times. On November 29, 1990, by section 535 of the Immigration Act of 1990, Public Law 101-649, Congress added a new subsection (a)(6) prohibiting certain unfair documentary practices during the employment eligibility verification process. See 8 U.S.C. 1324b(a)(6) (1994). On September 30, 1996, by section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, div. C, Congress further amended that provision by providing that unfair documentary practices were unlawful only if done “for the purpose or with the intent of discriminating against an individual in violation of” 8 U.S.C. 1324b(a)(1). See 8 U.S.C. 1324b(a)(6) (2000). The set of regulations implementing section 1324b, 28 CFR part 44, has not been updated to reflect the statutory text as amended by IIRIRA. The proposed revisions apply to the Special Counsel's investigations and to cases adjudicated under section 1324b before the Department's Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO).

    The proposed revisions to 28 CFR part 44 incorporate the intent requirement contained in the amended statute, and also change the regulatory provisions regarding the Special Counsel's investigation of unfair immigration-related employment practices. Specifically, the proposed revisions update the ways in which charges of discrimination can be filed, clarify the procedures for processing of such charges, and conform the regulations to the statutory text to clarify the timeframes within which the Special Counsel may file a complaint with OCAHO. The proposed revisions also simplify the definitions of certain statutory terms and define additional statutory terms to clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text. Additionally, the proposed revisions codify the Special Counsel's existing authority to seek and ensure the preservation of evidence during investigations of alleged unfair immigration-related employment practices. The proposed revisions also replace references to the former Immigration and Naturalization Service with references to the Department of Homeland Security (DHS), where applicable, in accordance with the Homeland Security Act of 2002, Public Law 107-296 (HSA).

    Finally, the proposed revisions reflect the change in name of the office within the Department's Civil Rights Division that enforces the anti-discrimination provision, from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section.

    Section-by-Section Summary 28 CFR Part 0 Section 0.53 Immigrant and Employee Rights Section

    This proposed rule would amend this section to reflect the new name of the office through which the Special Counsel enforces the anti-discrimination provision. In 1997, the Department of Justice incorporated the Office of Special Counsel for Immigration-Related Unfair Employment Practices into the Civil Rights Division. 62 FR 23657 (May 1, 1997) (codified at 28 CFR 0.53). That office is now called the Immigrant and Employee Rights Section, headed by the Special Counsel, in the Civil Rights Division.

    28 CFR Part 44 Subpart A—Purpose and Definitions Section 44.100 Purpose

    The proposed rule would amend this section to reflect the enactment of IIRIRA.

    Section 44.101 Definitions of statutory terms and phrases

    New paragraph (a) would contain a revised definition of the term “charge.” The proposed revisions would simplify this definition by eliminating information related to an alien's immigration status that is not required in determining whether the Special Counsel has jurisdiction to investigate an alleged unfair immigration-related employment practice. The proposed revised definition would ensure that a charge form could be treated as a filed charge even if the form was incomplete, as provided in 28 CFR 44.301, so long as it nonetheless provided sufficient information to determine the agency's jurisdiction. Further, the proposed revisions would codify the longstanding practice of accepting written statements in any language alleging an unfair immigration-related employment practice.

    New paragraph (b) would contain a revised definition of the term “charging party.” The rule would replace the word “individual” with the term “injured party,” which is later defined, in order to simplify the regulatory text. It would also replace the term “private organization” with the term “entity” in order to make clear that the scope of entities that may file a charge on behalf of one or more injured parties is not limited to private organizations. In addition, it would clarify that the DHS may file charges alleging ongoing as well as past acts of unlawful employment discrimination. Finally, it would change the phrase “has been adversely affected” to “is adversely affected” to more closely track the statutory language.

    New paragraph (c) would define the term “citizenship status.” The proposed revisions add this term to the list of defined statutory terms to codify the definition of this term, consistent with the Special Counsel's longstanding guidance to the public. An individual's citizenship status connotes more than simply whether the individual is or is not a U.S. citizen, and encompasses as well a non-U.S. citizen's immigration status. For example, a refugee denied hire because of his or her refugee status could be a victim of unlawful discrimination. Relevant administrative decisions support the conclusion that an individual's citizenship status includes immigration status. See, e.g., Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993) (“Congress intended the term `citizenship status' to refer both to alienage and to non-citizen status.”).

    New paragraph (d) would contain a revised definition of “complaint.” The proposed revision would clarify that complaints must be filed with OCAHO and allege one or more unfair immigration-related employment practices, and would replace the reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA.

    New paragraph (e) would define the term “discriminate,” as that term is used in 8 U.S.C. 1324b. This proposed definition clarifies that discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility. See, e.g., United States v. Sw. Marine Corp., 3 OCAHO no. 429, 336, 359 (1992). Section 1324b is modeled after Title VII of the Civil Rights Act of 1964, and case law under that provision confirms that intentional discrimination does not require animus or hostility. See Sodhi v. Maricopa Cty. Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008) (“Because § 1324b was expressly modeled on Title VII of the Civil Rights Act of 1964 as amended . . . case law developed under that statute has long been held to be persuasive in interpreting § 1324b.”); see also Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (stating that, in the context of Title VII, “absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.”).

    New paragraph (f) would define the phrase “for purposes of satisfying the requirements of section 1324a(b).” This proposed definition incorporates the well-established construction of this statutory language to include all of an employer's efforts to verify an individual's employment eligibility. Thus, this definition includes not only the process related to completing the DHS Employment Eligibility Verification Form I-9, but also any other employment eligibility verification practices, such as the DHS electronic employment eligibility verification (E-Verify) process. See, e.g., United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012).

    New paragraph (g) would define the phrase “for the purpose or with the intent of discriminating against an individual in violation of paragraph (1),” as that phrase is used in 8 U.S.C. 1324b(a)(6). This proposed definition clarifies that the act of intentionally treating an individual differently based on national origin or citizenship status is sufficient to demonstrate discriminatory intent regardless of the explanation for the discrimination, and regardless of whether it is based on animus or hostility. See United States v. Life Generations Healthcare, LLC, 11 OCAHO no. 1227, 22-23 (2014) (stating that the discriminatory intent inquiry under 8 U.S.C. 1324b(a)(6) involves “ask[ing] the question whether the outcome would have been different if the groups had been reversed”). For instance, an employer's request that an individual present more or different documents than required under 8 U.S.C. 1324a(b) because of the individual's citizenship status or national origin constitutes intentional discrimination, even if the employer thought that requesting such documents would help the individual complete the Form I-9 faster or even if the employer was completely unaware of the prohibition against discrimination in the employment eligibility verification process. See id.

    New paragraph (h) would define “hiring.” This proposed definition is intended to make clear that conduct during the entire hiring process, and not solely the employer's final hiring decision, may constitute an unfair immigration-related employment practice. This definition is consistent with the Special Counsel's longstanding interpretation and is well-established in relevant administrative decisions. See, e.g., Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11; Mid-Atlantic Reg'l Org. Coal. v. Heritage Landscape Servs., LLC, 10 OCAHO no. 1134, 8 (2010).

    New paragraph (i) would contain a revised and simplified definition of “injured party.” It would clarify that this term includes any person who claims to be adversely affected by an unfair immigration-related employment practice.

    New paragraph (j) would define the statutory phrase “more or different documents than are required under such section.” In accordance with both the weight of OCAHO authority and the longstanding interpretation of the Special Counsel, this proposed definition provides that an employer's request that an individual present specific documents from the Form I-9 Lists of Acceptable Documents for employment eligibility verification purposes violates 8 U.S.C. 1324b(a)(6) where that request is made because of the individual's national origin or citizenship status. See, e.g., United States v. Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 507 (1999); United States v. Strano Farms, 5 OCAHO no. 748, 206, 222-23 (1995); United States v. Beverly Ctr., 5 OCAHO no. 762, 347, 351 (1995); United States v. A.J. Bart, Inc., 3 OCAHO no. 538, 1374, 1387 (1993); see also United States v. Zabala Vineyards, 6 OCAHO no. 830, 72, 85-88 (1995) (holding, prior to the enactment of IIRIRA, that 8 U.S.C. 1324b(a)(6) did not prohibit an employer's request for specific documents “in the absence of evidence that . . . aliens but not other new hires were required to rely on and produce specific documents”). To interpret the statute otherwise would allow employers to discriminate against an individual by imposing more restrictions on the documentation that an individual can show to establish identity and employment authorization than 8 U.S.C. 1324a(b) provides.

    New paragraph (k) would contain a revised definition of “protected individual.” This proposed revision restructures the existing definition for the purpose of clarity, and replaces a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA.

    New paragraph (l) would define “recruitment and referral for a fee.” This proposed definition is intended to make clear that conduct during the entire process of recruitment or referral for a fee, and not solely the employer's final recruitment or referral decision, may constitute an unfair immigration-related employment practice. This definition is consistent with the Special Counsel's longstanding interpretation and is well-established in relevant administrative decisions. See, e.g., Mid-Atl. Reg'l Org. Coal., 10 OCAHO no. 1134 at 8 (“The governing statute specifically applies to recruitment for employment as well as to hiring, and OCAHO cases have long held that it is the entire selection process, and not just the hiring decision alone, which must be considered in order to ensure that there are no unlawful barriers to opportunities for employment.”).

    New paragraph (m) would contain a revised definition of “respondent.” This proposed revision is intended to clarify that an entity against whom the Special Counsel opens an investigation is considered a respondent, regardless of whether the investigation was initiated by a charge filed under 8 U.S.C. 1324b(b)(1) or the Special Counsel's independent statutory authority to investigate possible unfair immigration-related employment practices pursuant to 8 U.S.C. 1324b(d)(1).

    New paragraph (n) would contain a revised definition of “Special Counsel.” This proposed revision makes clear that a duly authorized designee may act as the Special Counsel when the Special Counsel position is vacant.

    Section 44.102 Computation of Time

    Section 44.102 is added to provide clarification regarding the calculation of time periods specified in part 44.

    Section 44.200 Unfair Immigration-Related Employment Practices

    Paragraph (a) sets forth the three forms of prohibited unfair immigration-related employment practices: (1) Discrimination with respect to hiring, recruiting or referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices. The proposed revisions would clarify specific parameters of conduct that constitute unfair documentary practices.

    Paragraph (a)(3) sets forth the prohibition against unfair documentary practices. The proposed revisions would replace the term “documentation abuses” with “unfair documentary practices” to more clearly describe the prohibited conduct. Further, to conform to the statutory text, which was amended by section 421 of IIRIRA, these proposed revisions clarify that a showing of intentional discrimination is required to establish an unfair documentary practice under 8 U.S.C. 1324b(a)(6). Additionally, the proposed revisions would clarify, based on the plain language of the statutory text, that unfair documentary practices do not require a showing that the discriminatory documentary request was made as a condition of employment. Liability for unfair documentary practices should not depend on whether an individual can prove that the documentary request was made as a condition of employment. Furthermore, the statutory text describing unfair documentary practices does not include any language requiring rescission of an employment offer, discharge, or other economic harm to establish liability. See Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11 (“[A]n `injury' is not necessary to establish liability for document abuse.” (quoting United States v. Patrol & Guard Enters., Inc., 8 OCAHO no. 1040, 603, 625 (2000))); Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 498-500 (finding pattern or practice of unfair documentary practices and assessing civil penalties for violations without requiring a showing of economic harm); Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798, 802 (9th Cir. 1998) (request may be an unfair documentary practice even if individual was able to comply with the request). These revisions are consistent with the Special Counsel's longstanding interpretation of the statute.

    Paragraph (b) sets forth three circumstances in which paragraph (a)(1) does not apply. The proposed revision would replace the reference to paragraph (a) with a reference to paragraph (a)(1) to conform the exceptions language to the statutory text.

    Section 44.202 Counting Employees for Jurisdictional Purposes

    This proposed section is newly added and would codify the existing process by which the Special Counsel determines whether the Special Counsel or the Equal Employment Opportunity Commission (EEOC) has jurisdiction over a claim of national origin discrimination under 8 U.S.C. 1324b(a)(1). This section makes clear that the Special Counsel's office will count all full-time and part-time employees employed on the date of the alleged discrimination to determine whether it has jurisdiction over an entity charged with national origin discrimination under 8 U.S.C. 1324b(a)(1). In assessing whether the EEOC might have primary jurisdiction over allegations of national origin discrimination, the Special Counsel will also rely on the method for calculating an entity's number of employees set forth in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e(b). The Special Counsel will refer section 1324b(a)(1) national origin discrimination charges to the EEOC where an employer has 15 or more employees for each working day in each of 20 or more calendar weeks during the current or preceding calendar year. Id. If an employer does not meet this threshold, but employed more than three employees on the date of the alleged discrimination, the Special Counsel will investigate the charge.

    Section 44.300 Filing a Charge

    The proposed revision to paragraph (a) would replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA, and simplify the paragraph's structure.

    Paragraph (b) would be revised to simplify the existing language and clarify that a charge is deemed to be filed on the date it is transmitted or delivered in instances in which it is filed by a method other than by mail.

    Paragraph (c) would be revised to remove specific references to addresses, in order to avoid the need for future technical revisions; to codify the existing practice of accepting charge filings through means other than mail and courier delivery; and to account for new methods of charge filings in the future.

    Paragraph (d) would be revised to be consistent with the statutory text. Section 1324b(b)(2) of title 8 of the United States Code prohibits the filing of a charge described in section 1324b(a)(1)(A) with the Special Counsel if a charge with respect to that practice based on the same set of facts has been filed with the EEOC under title VII of the Civil Rights Act of 1964, unless the charge is dismissed as being outside the scope of such title. Current paragraph (d) broadens this prohibition to exclude not only duplicative national origin claims under section 1324b(a)(1)(A) but also citizenship status claims under section 1324b(a)(1)(B) that are based on the same set of facts as an EEOC charge. The amendment would make this paragraph consistent with the statute by limiting this prohibition to only national origin charges filed with the Special Counsel under section 1324b(a)(1)(A).

    Section 44.301 Receipt of Charge

    This section would be substantially reorganized to eliminate ambiguities in the existing regulations regarding the process the Special Counsel follows when a charge is received. Paragraph (a) would be revised to clarify when the obligation is triggered under 8 U.S.C. 1324b(b)(1) to provide notice to the charging party and respondent of the Special Counsel's receipt of a charge.

    Paragraph (b) would set forth the contents of the Special Counsel's written notice to the charging party, replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA, and conform language regarding the charging party's time frame for filing a complaint to existing statutory text. See 8 U.S.C. 1324b(d)(2).

    New paragraph (c) would be substantially similar to existing paragraph (e), which sets forth the contents of the Special Counsel's notice to the respondent.

    New paragraph (d) would combine existing paragraphs (c)(1) and (d)(2) to more clearly state the process for handling inadequate submissions filed with the Special Counsel. This proposed revision also applies the methodology in revised § 44.300(b) to determine when an inadequate submission later deemed to be a charge is considered filed and when additional information provided pursuant to the Special Counsel's request in response to an inadequate submission is considered timely. While the statute requires that a charge be filed with the Special Counsel within 180 days of the alleged violation, see 8 U.S.C. 1324b(d)(3), the statute does not speak to the handling or processing of inadequate submissions. Existing regulations address inadequate submissions as a practical necessity to prevent the Special Counsel's office from investigating claims that clearly fall outside of its jurisdiction, while at the same time ensuring that timely-filed meritorious charges that may be missing some information can still be considered timely. The revisions to the current regulations aim to set forth more clearly and revise the procedures for handling inadequate submissions, including by retaining the 45-day grace period to allow a charging party to provide requested additional information consistent with the Special Counsel's long-standing practice. This grace period is consistent with the remedial purpose of section 1324b. See United States v. Mesa Airlines, 1 OCAHO no. 74, 461, 513 (1989) (recognizing the “remedial purpose” of section 1324b). That purpose would be frustrated, and meritorious claims would be foreclosed, if the Special Counsel imposed a harsh and rigid rule requiring dismissal of timely-filed charges that may allege a violation of section 1324b, but that do not set forth all the elements necessary to be deemed a complete charge.

    New paragraph (e) would be substantially similar to existing paragraph (c)(2), with an additional revision to ensure consistency in the regulations on the determination of the filing date of an inadequate submission.

    New paragraph (f) would be added to account for the referral of incomplete or complete charges to the Special Counsel by another government agency.

    New paragraph (g) would be substantially similar to existing paragraph (d)(1), with an additional clarification regarding the dismissal of inadequate submissions, and the elimination of the term “with prejudice.” These proposed revisions would incorporate the standards set forth in administrative decisions for determining whether an incomplete or complete charge that is filed late should nonetheless be considered timely, including when a dismissed incomplete charge is resubmitted for consideration based on equitable reasons. It is well-established in relevant administrative decisions that the 180-day charge filing period is not a jurisdictional prerequisite, but is subject to waiver, estoppel, and equitable tolling. See, e.g., Lardy v. United Airlines, Inc., 4 OCAHO no. 595, 31, 73 (1994); Halim v. Accu-Labs Research, Inc., 3 OCAHO no. 474, 765, 779 (1992). While those equitable modifications of filing deadlines are sparingly applied, they may be available particularly where the failure to meet a deadline arose from circumstances beyond the charging party's control. See, e.g., Sabol v. N. Mich. Univ., 9 OCAHO no. 1107, 4-5 (2004).

    Section 44.302 Investigation

    Paragraph (a) would be revised to describe more broadly the means by which the Special Counsel may undertake an investigation of possible unfair immigration-related employment practices, including the authority to solicit testimony as necessary.

    New paragraph (b) would authorize the Special Counsel to require any person or other entity to present Forms I-9 for inspection. The Immigration and Nationality Act expressly provides the Special Counsel with authority to inspect Forms I-9. See 8 U.S.C. 1324a(b)(3).

    New paragraph (c) would be substantially similar to existing paragraph (b), but would broaden the list of items that an entity or person must permit the Special Counsel to access.

    New paragraph (d) would codify the preservation obligations of a respondent that is the subject of an investigation by the Special Counsel. Such obligations are necessary to ensure that the Special Counsel's right to access and examine evidence is preserved. See id. 1324b(f)(2). In addition, these obligations are reasonable and appropriate in light of the Special Counsel's authority to seek a subpoena requiring the production of relevant evidence. Id. Finally, since at least 2006, all entities subject to an investigation by the Special Counsel have been instructed in writing, at the outset of the investigation, to preserve relevant documents. These obligations are also consistent with “litigation hold” requirements under the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 16(b)(3)(B)(iii), 26(b)(5)(B), 45(e)(2)(B).

    Section 44.303 Determination

    Paragraph (a) would be revised and simplified.

    Paragraph (b) would be revised to more clearly set forth the time frame for the Special Counsel to issue letters of determination.

    Paragraph (c) would be revised to replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA.

    Paragraph (d) would be revised to clarify that the Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing private actions. The only statutory time limit on the Special Counsel's authority to file a complaint based on a charge is contained in 8 U.S.C. 1324b(d)(3), entitled “Time limitations on complaints,” and states that “[n]o complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel.” The 90-day statutory time limit, in contrast, is contained in 8 U.S.C. 1324b(d)(2), entitled “Private actions,” and states that “the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice.” The “Private actions” provision makes clear that the Special Counsel has a right to “investigate the charge or to bring a complaint . . . during such 90-day period.” Id. Nothing in the statute explicitly states that the Special Counsel is subject to that 90-day limit, however, or prohibits the Special Counsel's office from continuing to investigate a charge or from filing its own complaint based on a charge even after the 90-day period for a charging party to file a private complaint has run.

    Relevant administrative decisions interpreting section 1324b support the conclusion that the Special Counsel is not bound by the statutory time limits that are applicable to individuals filing private actions. See, e.g., United States v. Agripac, Inc., 8 OCAHO no. 1028, 399, 404 (1999) (stating that section 1324b “does not set out in terms any particular time within which the Special Counsel must file a complaint before an administrative law judge”); United States v. Gen. Dynamics Corp., 3 OCAHO no. 517, 1121, 1156 (1993) (“The statute contains no time limitations on the Special Counsel's authority to conduct independent investigations or to subsequently file complaints based on such investigations.”). The Special Counsel's position is also consistent with the Supreme Court's interpretation of a similar provision in Title VII of the 1964 Civil Rights Act. See Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 361 (1977) (holding that the EEOC is not subject to a complaint-filing deadline where the statutory language does not explicitly contain such a deadline and the legislative history does not support it). Given that section 1324b is modeled after Title VII—with similar charge-filing procedures and virtually identical timetables—the Supreme Court's ruling on this issue is highly instructive. See Sodhi, 10 OCAHO no. 1127 at 7-8.

    The Special Counsel's authority to file a complaint based on a charge is, however, subject to some time limits. Similar to the EEOC, the Special Counsel is bound by equitable limits on the filing of a complaint. See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014). In addition, the Special Counsel must comply with the five-year statutory time limit in 28 U.S.C. 2462 for bringing actions to impose civil penalties.

    Section 44.304 Special Counsel Acting on Own Initiative

    Paragraph (a) sets forth the process for the Special Counsel to conduct an investigation on his or her own initiative. This paragraph would be revised to conform with the Special Counsel's existing practice of notifying a respondent by certified mail of an investigation opened under this paragraph. Comments addressing whether the use of certified mail is effective are encouraged. For commenters who believe another method is preferable (such as regular mail or regular mail with delivery tracking), comments explaining why another method is preferable are also encouraged.

    Paragraph (b) would be revised to make the time frame for the Special Counsel to bring a complaint based on an investigation opened on the Special Counsel's own initiative pursuant to 8 U.S.C. 1324b(d)(1) and 28 CFR 44.304(a) consistent with the statutory text. The statutory text can be reasonably read to provide no time limit for the Special Counsel to file a complaint. United States v. Fairfield Jersey, Inc., 9 OCAHO no. 1069, 5 (2001) (acknowledging the absence of a statutory time limitation for the filing of a complaint arising out of an independent investigation). The statute provides only that the Special Counsel's authority to file a complaint based on such investigations be “subject to” 8 U.S.C. 1324b(d)(3), which in turn specifies that “[n]o complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel.” 8 U.S.C. 1324b(d)(1), (3) (emphasis added). Where the Special Counsel is conducting an investigation on his or her own initiative, no “charge” has been filed. The most reasonable application of 8 U.S.C. 1324b(d)(3) in that circumstance, therefore, is that the Special Counsel may not file a complaint unless an investigation on the Special Counsel's own initiative pursuant to 8 U.S.C. 1324b(d)(1) was opened within 180 days of the last known act of discrimination, as the opening of the Special Counsel's investigation is the nearest equivalent to the filing of a charge. The current regulations require the Special Counsel to file a complaint “where there is reasonable cause to believe that an unfair immigration-related employment practice has occurred within 180 days from the date of the filing of the complaint.” 28 CFR 44.304(a) (emphasis added). That requirement unnecessarily restricts the Special Counsel's enforcement authority and is not required by the language of the statute. While the Special Counsel and respondents have entered into stipulations to extend the complaint-filing date in circumstances when the Special Counsel requires more time to conduct an investigation under 8 U.S.C. 1324b(d)(1) or to facilitate settlement discussions, it is appropriate to revise the regulations to better accord with the statutory language. Similar to the EEOC, the Special Counsel is bound by equitable limits on the filing of a complaint. Propak Logistics, 746 F.3d 145. In addition, the Special Counsel must comply with the five-year statutory time limit for bringing actions to impose civil penalties. 28 U.S.C. 2462.

    Section 44.305 Regional Offices

    The proposed rule would amend this section to conform its language to 8 U.S.C. 1324b(c)(4).

    Public Participation

    Please note that all comments received are considered part of the public record and are made available for public inspection online at http://www.regulations.gov. The information made available includes personal identifying information (such as name and address) voluntarily submitted by the commenter.

    If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

    If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

    Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. The docket file will be available for public inspection during normal business hours at 1425 New York Avenue, Suite 9000, Washington, DC 20005. Upon request, individuals who require assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. If you wish to inspect the agency's public docket file in person, please see the FOR FURTHER INFORMATION CONTACT paragraph above to schedule an appointment.

    Copies of this rule may be obtained in alternative formats (large print, Braille, audio tape, or disc), upon request, by calling DeJuana Grant at (202) 616-5594. TTY/TDD callers may dial toll-free (800) 237-2515 to obtain information or request materials in alternative formats.

    Regulatory Procedures Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

    The rule has been drafted and reviewed in accordance with Executive Order 12866 (Sept. 30, 1993), and Executive Order 13563 (Jan. 18, 2011). Executive Order 12866 directs 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, and other effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits (while recognizing that some benefits and costs are difficult to quantify), reducing costs, harmonizing rules, and promoting flexibility.

    Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and Office of Management and Budget (OMB) review. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as any regulatory action that is likely to result in a rule “that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The Department has determined that the proposed rule is not an economically significant regulatory action under section 3(f)(1) of Executive Order 12866 because the Department estimates that its annual economic impact will be a one-time, first-year-only cost of $12.3 million—far less than $100 million. The Department has quantified and monetized the costs of the proposed rule over a period of 10 years (2016 to 2025) to ensure that its estimate captures all major benefits and costs, but has determined that all quantifiable costs will only be incurred during the first year after the regulations are implemented. Because the Department was unable to quantify the benefits of the proposed rule due to data limitations, the benefits are described qualitatively. When summarizing the costs of specific provisions of the proposed rule, the Department presents the 10-year present value of the proposed rule requirements.

    The Department considered the following factors when measuring the proposed rule's impact: (a) Employers familiarizing themselves with the rule, (b) employers reviewing and revising their employment eligibility verification policy, and (c) employers and employees viewing training webinars. The largest first-year cost is the cost employers would incur to review and revise their employment eligibility verification policies, which is $7,840,566. The next largest cost is the cost employers would incur to familiarize themselves with the rule, which is $4,448,548.

    The economic analysis presented below covers all employers with four or more employees, consistent with the statute's requirement that a “person or entity” have more than three employees to fall within OSC's jurisdiction for citizenship status and national origin discrimination in hiring, firing, and recruitment or referral for a fee. 8 U.S.C. 1324(a)(2).

    In the following sections, the Department first presents a subject-by-subject analysis of the costs of the proposed rule. The Department then presents the undiscounted 10-year total cost ($12.3 million) and a discussion of the expected benefits of the proposed rule. The costs are incurred entirely in the first year; thus, they are not discounted.

    The Department did not identify any transfer payments associated with the provisions of the rule. Transfer payments, as defined by OMB Circular A-4, are “monetary payments from one group to another that do not affect total resources available to society.” OMB Circular A-4 at 38 (Sept. 17, 2003). Transfer payments are associated with a distributional effect but do not result in additional costs or benefits to society.

    In the subject-by-subject analysis, the Department presents the labor and other costs for each provision of the proposed rule. Exhibit 1 displays the labor categories that are expected to experience an increase in level of effort (workload) due to the proposed rule. To estimate the cost, the Department multiplied each labor category's hourly compensation rate by the level of effort. The Department used wage rates from the Mean Hourly Wage Rate calculated by the Bureau of Labor Statistics.1 Wage rates are adjusted using a loaded wage factor to reflect total compensation, which includes health and retirement benefits. The loaded wage factor was calculated as the ratio of average total compensation to average wages in 2014, which resulted in 1.43 for the private sector.2 The Department then multiplied the loaded wage factor by each labor category's wage rate to calculate an hourly compensation rate.

    1 Bureau of Labor Statistics, May 2014 National Occupational Employment and Wage Estimates: United States (Mar. 25, 2015), http://www.bls.gov/oes/current/oes_nat.htm.

    2 The Department calculated average total compensation by taking the average of the cost of total compensation for all workers in December, September, June, and March of 2014 ((31.32 + 30.32 + 30.11 + 29.99)/4 = 30.44), and calculated average wages by taking the average of the cost of wages and salaries for those employees in each of those four months ((21.72 + 21.18 + 21.02 + 20.96)/4 = 21.22). See BLS, News Release, Employer Costs for Employee Compensation—December 2014, Table 5 (Mar. 11, 2015); BLS, News Release, Employer Costs for Employee Compensation—September 2014, Table 5 (Dec. 10, 2014); BLS, News Release, Employer Costs for Employee Compensation—June 2014, Table 5 (Sept. 10, 2014); BLS, News Release, Employer Costs for Employee Compensation—March 2014, Table 5 (June 11, 2014). (Each of these news releases is available at http://www.bls.gov/schedule/archives/ecec_nr.htm.) The Department then calculated the loaded wage factor by taking the ratio of average total compensation to average total wages (30.44/21.22 = 1.43).

    Exhibit 1—Calculation of Hourly Compensation Rates Position Average
  • hourly wage a
  • Loaded wage factor b Hourly compensation rate
  • c = a × b
  • Human Resources Manager $54.88 1.43 $78.4784 Attorney 64.17 91.7631
    1. Subject-by-Subject Analysis a. Employers Familiarize Themselves With the Rule

    During the first year of the rule, employers with a developed human resources practice would need to read and review the rule to learn about the new requirements. The Department determined that no costs would be incurred by employers to familiarize themselves with the rule in years two through ten because (1) the cost for an existing employer to familiarize itself with the rule if it delays doing so until a subsequent year is already incorporated into the first-year cost calculations; and (2) for employers that are newly created in years two through ten, the cost of familiarization is the same as exists under the current regulations and, therefore, there is no incremental cost.

    Employers would incur labor cost to familiarize themselves with the new rule. To estimate the labor cost for this provision, the Department first estimated the number of employers that would need to familiarize themselves with the proposed rule by relying on the number of organizational members in the Council for Global Immigration (CGI) and the Society for Human Resource Management (SHRM).3 The Department used the number of organizational members in these two organizations as a proxy for the number of employers with a developed human resources practice that can be expected to institutionalize the regulatory changes. The Department acknowledges the possible overlap between SHRM and CGI members. The Department's analysis model therefore likely overestimates, to some extent, the number of entities (and thus, the costs) by assuming that an entity is a member of either SHRM or CGI, but not both.

    3 The Department obtained the number of individual and organizational members in CGI and the number of individual members of SHRM directly from these two organizations. Data on the number of organizational members of SHRM was not available. To estimate the number of organizational members in SHRM, the Department applied the same ratio of organizational members (230) to individual members (1,100) in CGI to the number of individual members in SHRM (270,000), which results in 56,455 organizational members (270,000 × 230/1,100). The Department added the number of organizational members in CGI (230) and SHRM (56,455) to estimate the number of organizational members in the analysis (56,685), which serves as a proxy for the number of employers that would need to take action because of the proposed rule.

    The Department then multiplied the estimated number of employers by the assumed number of human resources (HR) managers per employer, the time required to read and review the new rule, and the hourly compensation rate. The Department estimated this one-time cost to be $4,448,548.4

    4 The Department estimated the cost of this review by multiplying the estimated number of employers (56,685) by the number of HR managers per employer (1), the time needed to read and review the rule (1 hour), and the hourly compensation rate ($78.4784). This calculation yields a labor cost of $4,448,548.

    b. Employers Review and Revise Employment Eligibility Verification Policies

    The proposed rule would require some employers to revise their employment eligibility verification policies. Although all U.S. employers must ensure that a Form I-9 is properly completed for each individual they hire for employment in the United States to verify the individual's identity and employment authorization in accordance with their obligations under 8 U.S.C. 1324a, only a subset of employers has detailed written policies addressing compliance with section 1324b. The Department assumed that these employers save their policies in an electronic format that can be readily modified. For the policy revisions, employers would complete a simple “search-and-replace” to update the agency's name and possibly replace the term “documentation abuse(s)” with “unfair documentary practice(s).”

    Only the very limited number of those employers that have detailed written employment eligibility policies would need to make additional modifications to their policies. The Department estimated costs only for those employers that have written employment eligibility verification policies and that would be expected to review their policies and make changes as needed. The time involved would depend on the changes employers need to make and how many sections of the policy would need to be modified.

    Employers with policies for verifying employment eligibility (and possibly employers with hiring or termination policies, even if they lack policies for verifying employment eligibility) might conduct a front-to-back review of their policies to determine whether any additional changes are needed.

    These changes and reviews would represent an upfront, one-time cost to employers. The Department estimates this cost as the sum of the cost of revising the policies by making word replacements; the cost, for some employers, of making additional changes beyond word replacements; and the cost of conducting a front-to-back review of the employment eligibility verification policies.

    To estimate the labor cost for making word replacements to the employment verification policies, the Department first estimated the number of employers that would make these revisions because of the proposed rule by relying on the number of organizational members in the SHRM and CGI. The Department then multiplied the estimated number of employers by the assumed number of HR managers per employer, the time required to make the revisions, and the hourly compensation rate.5 This calculation yields $1,112,137 in labor costs related to revising employment eligibility verification policies in the first year of the rule.

    5 To estimate the cost of making revisions, the Department multiplied the estimated number of employers (56,685) by the assumed number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to make the revisions (0.25 hours). This calculation results in a cost of $1,112,137.

    To estimate the additional cost to those employers making changes beyond word replacements in the first year of the proposed rule, the Department assumed that 5 percent of employers (i.e., the number of organizational members in CGI and SHRM) would make these changes. The Department then multiplied the number of employers that would make these additional changes by the assumed number of HR managers per employer, the time required to make the changes, and the hourly compensation rate. This calculation yields $55,607 in labor costs in the first year of the rule.6

    6 To estimate the cost of making changes beyond word replacements, the Department first calculated the number of employers that would make these changes. The Department obtained the number of employers that would make these additional changes by multiplying the number of employers (56,685) by the assumed percentage of employers that would make these additional changes (5%). This calculation yields the number 2,834.25. The Department then multiplied that number of employers (2,834.25) by the number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to make the changes (0.25 hours). This calculation results in a cost of $55,607.

    To estimate the cost of conducting a front-to-back review of the policies for verifying employment eligibility (or hiring and termination policies), the Department multiplied the number of employers (i.e., the number of organizational members in CGI and SHRM) by the number of HR managers per employer, the time required for a review, and the hourly compensation rate. This calculation yields $6,672,822 in labor costs in the first year of the rule.7

    7 To estimate the cost of reviewing the policies, the Department assumed, out of an abundance of caution, that all of the employers affiliated with CGI or SHRM would dedicate one HR manager to conduct a front-to-back review of their policies. Accordingly, the Department multiplied the number of employers (56,685) by the assumed number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to review the policies (1.5 hours). This calculation results in a cost of $6,672,822.

    In total, the one-time costs to employers to revise the policies for verifying employment eligibility by making word replacements, to make additional changes beyond word replacements in the case of some employers, and to conduct a front-to-back review of those policies, are estimated to be $7,840,566 during the first year of rule implementation.

    c. Employers and Employees View Training Webinars

    During the first year of implementation, as a part of the Department's ongoing educational webinar series, the Department expects to schedule three live, optional employer training webinars per month and one live, optional advocate/employee training webinar per month to assist employers, employees, attorneys, and advocates in understanding the changes resulting from the rule. These live one-hour training webinars would cover the full spectrum of employer obligations and employee rights under the statute. The Department also expects to create three one-hour recorded webinars: One for employers and their representatives and two for employees and their representatives (one in English and one in Spanish). The Department anticipates that participation will occur mostly through viewings of the one-hour recorded webinars. The recorded training webinars developed to explain the post-rule regulatory and statutory obligations and rights would eventually replace the Department's existing live webinars. Therefore, the Department has calculated these costs for employers, employees, and their representatives to be incurred in the first year when learning about the changes, whether through a live or recorded training webinar. Thereafter, newly-created employers would be viewing training webinars instead of (not in addition to) viewing current webinars, with no incremental costs incurred.

    To estimate the cost to employers of viewing training webinars, the Department summed the labor costs for those viewing live webinars and the labor costs for those viewing recorded webinars. To estimate the number of employers viewing the live webinars, the Department used statistics on the average number of employer participants in live webinars. To estimate the number of employers viewing a recorded webinar, the Department used data on the number of viewings of the Department's educational videos pertaining to employer obligations under 8 U.S.C. 1324b that are posted on YouTube. Both estimates assume a 15-percent increase in participation following the implementation of the proposed rule.8 The Department multiplied the number of employers expected to view a webinar (represented by their HR managers) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The total one-time cost to employers for viewing live and recorded webinars is estimated to be $26,447.9

    8 On average, 44.7 individuals participate in live webinars for employers. The Department assumed that there would be a 15-percent increase in the number of participants following the implementation of the proposed rule. Thus, the Department estimated costs for seven employers (i.e., 15 percent of the 44.7 individuals) related to viewing the live webinar. On average, 567 individuals have viewed each of the educational YouTube videos. Thus, the Department estimated costs for 85 employers (i.e., 15 percent of the 567 individuals) related to viewing the recorded webinar.

    9 The Department estimated the cost of viewing the live webinars by taking the product of the number of employer representatives (HR managers) viewing the live webinar (7), the hourly compensation rate ($78.4784), the number of webinars per year (36), and the time required to view the webinar (1 hour). This yielded a cost of $19,777. The Department then estimated the cost of viewing the recorded webinars by taking the product of the number of employer representatives (HR managers) viewing the recorded webinars (85), the hourly compensation rate ($78.4784), the number of webinars (1), and the time required to view the webinar (1 hour). This yielded a cost of $6,671. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $26,447.

    To estimate the cost to employees of viewing live training webinars, the Department used existing statistics on the average participation of employees. To estimate the cost to employees of viewing recorded webinars, the Department used the employer-to-employee ratio of participation for the live webinars and applied it to the number of views of the Department's educational videos on YouTube. Both estimates assume a 5-percent increase in participation following the implementation of the proposed rule.10 These estimates are only related to the webinars recorded in English, since the Department does not expect an increase in the number of views of the Spanish webinars following the implementation of the rule. In the Department's experience, in many cases the live Spanish webinars that have been offered have been canceled due to low turnout. In other cases, the Spanish webinars proceeded but with a turnout of fewer than ten participants, who are typically employees. The Department multiplied the number of employees expected to view webinars (represented by their attorneys) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The Department estimates a total and aggregate one-time cost of $1,835 for viewing live and recorded advocate/employee webinars.11

    10 On average, 12 individuals participate in live webinars for employees. The Department assumed that there would be a 5-percent increase in individuals following the implementation of the proposed rule. Thus, the Department estimated costs for one employee (i.e., 5 percent of the 12 individuals) related to viewing the live webinars. On average, 567 individuals viewed the educational YouTube videos. The Department assumed the same proportion of employees-to-employers viewing the live webinars (0.268 = 12/44.7) would view the recorded webinars. This number would translate to 152 employees or employee advocates viewing the educational YouTube videos. Thus, the Department estimated costs for 8 employees (i.e., 5 percent of the 152 individuals) related to viewing the recorded webinar.

    11 The Department estimated the cost of viewing live webinars by taking the product of the number of employee representatives (captured by the attorney occupational category) viewing the live webinar (1), the hourly compensation rate ($91.7631), the number of webinars (12), and the time required to view the webinar (1 hour). This resulted in a cost of $1,101. The Department then estimated the cost of viewing recorded webinars by taking the product of the number of employee representatives, assumed to be an attorney, viewing the recorded webinar (8), the hourly compensation rate ($91.7631), the number of webinars (1), and the time required to view the webinar (1 hour). This resulted in a cost of $734. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $1,835.

    Accordingly, the total one-time cost to employers and employees of viewing live and recorded webinars would be $28,282.

    d. Benefits of the Proposed Rule

    The Department was not able to quantify the benefits of the proposed rule due to data limitations, such as an inability to calculate the amount of time employers would save from the proposed rule. Several benefits to society would result, however, from the proposed rule, including the following:

    Helping employers understand the law more efficiently. The proposed regulatory changes would reduce the time and effort necessary for employers to understand their statutory obligations by incorporating well-established administrative decisions, the Department's long-standing positions, and statutory amendments into the regulations.

    Increasing public access to government services. The proposed regulatory changes would streamline the charge-filing process for individuals alleging discrimination.

    Eliminating public confusion regarding two offices in the Federal Government with the same name. The proposed regulatory changes would reflect the change in the name of the office charged with enforcing 8 U.S.C. 1324b from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section, thereby eliminating delays in processing submissions that currently occur due to confusion associated with having two Offices of Special Counsel in the Federal Government.12

    12 In addition to the Official of Special Counsel for Immigration Related Unfair Employment Practices established by 28 CFR 0.53, Congress has established an Office of Special Counsel charged with protecting employees, former employees, and applicants for employment from prohibited personnel practices, among other functions. See 5 U.S.C. 1211-1212.

    Regulatory Flexibility Act and Executive Order 13272 (Consideration of Small Entities)

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, and Executive Order 13272 (Aug. 13, 2002), require agencies to prepare a regulatory flexibility analysis of the anticipated impact of a regulation on small entities. The RFA provides that the agency is not required to prepare such an analysis if an agency head certifies, along with a statement providing the factual basis for such certification, that the regulation is not expected to have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). Based on the following analysis, the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small entities.

    The Department's analysis focused on small businesses or nonprofits with 20 to 499 employees. The Department assumed that small businesses or nonprofits with fewer than 20 employees will not have a detailed written policy addressing compliance with 8 U.S.C. 1324b.

    The Department assumed that, in total, 56,685 entities will be affected by the proposed rule. Of those 56,685 affected entities, the Department estimated that 28,343 entities would be small employers.13 Dividing the affected population (28,343) by the total number of small businesses and non-profits (664,094), the Department estimates that 4.3 percent of small entities would be impacted by the proposed rule.14

    13 According to the SHRM Web site, approximately 50 percent of the organization's members work in organizations with fewer than 500 employees. See SHRM, About the Society for Human Resource Management, http://www.shrm.org/about/pages/default.aspx. Taking 50 percent of the total estimated number of members in SHRM and CGI (56,685) results in 28,343 small entities.

    14 The Department assumed that the total number of small businesses and non-profits is equal to the number of firms with 20 to 499 employees. Because the U.S. Census Bureau did not identify the number of firms with 20 to 499 employees in 2013, the most recent year for which data is available, the Department calculated the estimated number of firms with 20 to 499 employees in that year by calculating the number of establishments with 20 to 499 employees in 2013 and dividing it by the ratio of small establishments to small firms in 2012. To perform that calculation, the Department first determined the estimated number of firms with 20 to 99 employees in 2013 by (1) adding the number of establishments with 20 to 49 employees in 2013 and the number of establishments with 50 to 99 employees in 2013 (652,075 + 221,192 = 873,267); (2) dividing the number of establishments with 20 to 99 employees in 2012 by the number of firms with 20 to 99 employees in 2012 (687,272/494,170 = 1.39076); and (3) dividing the first number by the second (873,267/1.39076 = 627,906). The Department then determined the estimated number of firms with 100 to 499 employees in 2013 by (1) adding the number of establishments with 100 to 249 employees in 2013 and the number of establishments with 250 to 499 employees in 2013 (124,411 + 31,843 = 156,254); (2) dividing the number of establishments with 100 to 499 employees in 2012 by the number of firms with 100 to 499 employees in 2012 (360,207/83,423 = 4.3178); and (3) dividing the first number by the second (156,254/4.3178 = 36,188). Last, to determine the estimated number of firms with 20 to 499 employees in 2013, the Department added the estimated number of firms with 20 to 99 employees in 2013 and the estimated number of firms with 100 to 499 employees in 2013 (627,906 + 36,188 = 664,094). See U.S. Census Bureau, 2013 County Business Patterns (NAICS), http://censtats.census.gov; U.S. Census Bureau, 2012 Statistics of U.S. Businesses, Number of Firms, Number of Establishments, Employment, Annual Payroll, and Estimated Receipts by Enterprise Employment Size for the United States and States, Totals: 2012; http://www.census.gov/econ/susb/historical_data.html.

    The Department estimated the costs of (a) familiarizing staff with the new requirements in the rule, (b) reviewing and revising their employment eligibility verification policy, and (c) viewing a training webinar. The analysis focused on the first year of rule implementation, when all costs of the proposed rule are incurred. The Department estimates that the total one-year cost per small employer is $314.15 The Department has determined that the yearly cost of $314 will not be a significant economic impact on any of the affected small entities. Therefore, the Department has certified that the proposed rule will not have a significant impact on a substantial number of small entities.

    15 The Department estimated a cost of $314 per small entity by taking the sum of the cost per small entity of each of the proposed changes to the rule. This includes the following costs: Familiarization with the rule ($78), revising employment eligibility verification policies by making word replacements ($20), making additional changes beyond word replacements ($20), conducting a front-to-back review of the employment eligibility verification policies ($118), and viewing the training webinar ($78).

    Paperwork Reduction Act

    These regulations contain no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 8 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this proposed rule does not include any Federal mandate that may result in excess of $100 million in expenditures by State, local, and tribal governments in the aggregate or by the private sector.

    Executive Order 13132 (Federalism)

    The agency has reviewed this proposed rule in accordance with Executive Order 13132 (Aug. 4, 1999), and has determined that it does not have “federalism implications.” This proposed rule would 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.

    Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

    This proposed rule does not have tribal implications under Executive Order 13175 (Nov. 6, 2000) that would require a tribal summary impact statement. The proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    Executive Order 13045 (Protection of Children)

    This proposed rule is not a covered regulatory action under Executive Order 13045 (Apr. 21, 1997). The proposed rule would have no environmental health risk or safety risk that may disproportionately affect children.

    Executive Order 12630 (Constitutionally Protected Property Rights)

    This proposed rule does not have takings implications under Executive Order 12630 (Mar. 15, 1988). The proposed rule would not effect a taking or require dedications or exactions from owners of private property.

    Executive Order 12988 (Civil Justice Reform Analysis)

    This proposed rule was drafted and reviewed in accordance with Executive Order 12988 (Feb. 5, 1996), and will not unduly burden the Federal court system. Complaints respecting unfair immigration-related employment practices are heard in the first instance by the Department of Justice, Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.

    List of Subjects 28 CFR Part 0

    Authority delegations (Government agencies), Government employees, Organization and functions (Government agencies), Privacy, Reporting and recordkeeping requirements, Whistleblowing.

    28 CFR Part 44

    Administrative practice and procedure, Equal employment opportunity, Immigration.

    For the reasons stated in the preamble, the Attorney General proposes to revise 28 CFR parts 0 and 44 as follows:

    PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE 1. The authority citation for part 0 continues to read as follows: Authority:

    5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

    2. Section 0.53 is revised to read as follows:
    § 0.53 Immigrant and Employee Rights Section.

    (a) The Immigrant and Employee Rights Section shall be headed by a Special Counsel for Immigration-Related Unfair Employment Practices (“Special Counsel”). The Special Counsel shall be appointed by the President for a term of four years, by and with the advice and consent of the Senate, pursuant to section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee Rights Section shall be part of the Civil Rights Division of the Department of Justice, and the Special Counsel shall report directly to the Assistant Attorney General, Civil Rights Division.

    (b) In carrying out the Special Counsel's responsibilities under section 274B of the INA, the Special Counsel is authorized to:

    (1) Investigate charges of unfair immigration-related employment practices filed with the Immigrant and Employee Rights Section and, when appropriate, file complaints with respect to those practices before specially designated administrative law judges within the Office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, U.S. Department of Justice;

    (2) Intervene in proceedings involving complaints of unfair immigration-related employment practices that are brought directly before such administrative law judges by parties other than the Special Counsel;

    (3) Conduct, on the Special Counsel's own initiative, investigations of unfair immigration-related employment practices and, where appropriate, file complaints with respect to those practices before such administrative law judges;

    (4) Conduct, handle, and supervise litigation in U.S. District Courts for judicial enforcement of subpoenas or orders of administrative law judges regarding unfair immigration-related employment practices;

    (5) Initiate, conduct, and oversee activities relating to the dissemination of information to employers, employees, and the general public concerning unfair immigration-related employment practices;

    (6) Establish such regional offices as may be necessary, in accordance with regulations of the Attorney General;

    (7) Perform such other functions as the Assistant Attorney General, Civil Rights Division may direct; and

    (8) Delegate to any subordinate any of the authority, functions, or duties vested in the Special Counsel.

    3. Revise part 44 to read as follows: PART 44—UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES Sec. 44.100 Purpose. 44.101 Definitions. 44.102 Computation of time. 44.200 Unfair immigration-related employment practices. 44.201 [Reserved]. 44.202 Counting employees for jurisdictional purposes. 44.300 Filing a charge. 44.301 Receipt of charge. 44.302 Investigation. 44.303 Determination. 44.304 Special Counsel acting on own initiative. 44.305 Regional offices. Authority:

    8 U.S.C. 1103(a)(1), (g), 1324b.

    § 44.100 Purpose.

    The purpose of this part is to implement section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits certain unfair immigration-related employment practices.

    § 44.101 Definitions.

    For purposes of 8 U.S.C. 1324b and this part:

    (a) Charge means a written statement in any language that—

    (1) Is made under oath or affirmation;

    (2) Identifies the charging party's name, address, and telephone number;

    (3) Identifies the injured party's name, address, and telephone number, if the charging party is not the injured party;

    (4) Identifies the name and address of the person or other entity against whom the charge is being made;

    (5) Includes a statement sufficient to describe the circumstances, place, and date of an alleged unfair immigration-related employment practice;

    (6) Indicates whether the basis of the alleged unfair immigration-related employment practice is discrimination based on national origin, citizenship status, or both; or involves intimidation or retaliation; or involves unfair documentary practices;

    (7) Indicates the citizenship status of the injured party;

    (8) Indicates, if known, the number of individuals employed on the date of the alleged unfair immigration-related employment practice by the person or other entity against whom the charge is being made;

    (9) Is signed by the charging party and, if the charging party is neither the injured party nor an officer of the Department of Homeland Security, indicates that the charging party has the authorization of the injured party to file the charge;

    (10) Indicates whether a charge based on the same set of facts has been filed with the Equal Employment Opportunity Commission, and if so, the specific office and contact person (if known); and

    (11) Authorizes the Special Counsel to reveal the identity of the injured or charging party when necessary to carry out the purposes of this part.

    (b) Charging party means—

    (1) An injured party who files a charge with the Special Counsel;

    (2) An individual or entity authorized by an injured party to file a charge with the Special Counsel that alleges that the injured party is adversely affected directly by an unfair immigration-related employment practice; or

    (3) An officer of the Department of Homeland Security who files a charge with the Special Counsel that alleges that an unfair immigration-related employment practice has occurred or is occurring.

    (c) Citizenship status means an individual's status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen.

    (d) Complaint means a written submission filed with the Office of the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 by the Special Counsel or by a charging party, other than an officer of the Department of Homeland Security, alleging one or more unfair immigration-related employment practices under 8 U.S.C. 1324b.

    (e) Discriminate as that term is used in 8 U.S.C. 1324b means the act of intentionally treating an individual differently from other individuals, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.

    (f) The phrase “for purposes of satisfying the requirements of section 1324a(b),” as that phrase is used in 8 U.S.C. 1324b(a)(6), means for the purpose of completing the employment eligibility verification form designated in 8 CFR 274a.2, or for the purpose of making any other efforts to verify an individual's employment eligibility, including the use of “E-Verify” or any other electronic employment eligibility verification program.

    (g) An act done “for the purpose or with the intent of discriminating against an individual in violation of paragraph (1),” as that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of intentionally treating an individual differently based on national origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.

    (h) Hiring means all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee.

    (i) Injured party means an individual who claims to be adversely affected directly by an unfair immigration-related employment practice.

    (j) The phrase “more or different documents than are required under such section,” as that phrase is used in 8 U.S.C. 1324b(a)(6), includes any limitation on an individual's choice of acceptable documentation to present to satisfy the requirements of 8 U.S.C. 1324a(b).

    (k) Protected individual means an individual who—

    (1) Is a citizen or national of the United States;

    (2) Is an alien who is lawfully admitted for permanent residence, other than an alien who—

    (i) Fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization, or, if later, within six months after November 6, 1986; or

    (ii) Has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application, unless the alien can establish that he or she is actively pursuing naturalization, except that time consumed in the Department of Homeland Security's processing of the application shall not be counted toward the two-year period;

    (3) Is an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1);

    (4) Is admitted as a refugee under 8 U.S.C. 1157; or

    (5) Is granted asylum under 8 U.S.C. 1158.

    (l) Recruitment or referral for a fee has the meaning given the terms “recruit for a fee” and “refer for a fee,” respectively, in 8 CFR 274a.1, and includes all conduct and acts during the entire recruitment or referral process.

    (m) Respondent means a person or other entity who is under investigation by the Special Counsel, as identified in the written notice required by § 44.301(a) or § 44.304(a).

    (n) Special Counsel means the Special Counsel for Immigration-Related Unfair Employment Practices appointed by the President under 8 U.S.C. 1324b, or a duly authorized designee.

    § 44.102 Computation of time.

    When a time period specified in this part ends on a day when the Federal Government in Washington, DC is closed (such as on weekends and Federal holidays, or due to a closure for all or part of a business day), the time period shall be extended until the next full day that the Federal Government in Washington, DC is open.

    § 44.200 Unfair immigration-related employment practices.

    (a)(1) General. It is an unfair immigration-related employment practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to intentionally discriminate or to engage in a pattern or practice of intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—

    (i) Because of such individual's national origin; or

    (ii) In the case of a protected individual, as defined in § 44.101(k), because of such individual's citizenship status.

    (2) Intimidation or retaliation. It is an unfair immigration-related employment practice under 8 U.S.C. 1324b(a)(5) for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under 8 U.S.C. 1324b or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under that section.

    (3) Unfair documentary practices. It is an unfair immigration-related employment practice under 8 U.S.C. 1324b(a)(6) for—

    (i) A person or other entity, for purposes of satisfying the requirements of 8 U.S.C. 1324a(b), either—

    (A) To request more or different documents than are required under § 1324a(b); or

    (B) To refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual; and

    (ii) To make such request or refusal for the purpose or with the intent of discriminating against any individual in violation of paragraph (1), regardless of whether such documentary practice is a condition of employment or causes economic harm to the individual.

    (b) Exceptions. (1) Paragraph (a)(1) of this section shall not apply to—

    (i) A person or other entity that employs three or fewer employees;

    (ii) Discrimination because of an individual's national origin by a person or other entity if such discrimination is covered by 42 U.S.C. 2000e-2; or

    (iii) Discrimination because of citizenship status which—

    (A) Is otherwise required in order to comply with law, regulation, or Executive order; or

    (B) Is required by Federal, State, or local government contract; or

    (C) The Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.

    (2) Notwithstanding any other provision of this part, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire an individual, or to recruit or refer for a fee an individual, who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.

    § 44.201 [Reserved].
    § 44.202 Counting employees for jurisdictional purposes.

    The Special Counsel will calculate the number of employees referred to in § 44.200(b)(1)(i) by counting all part-time and full-time employees employed on the date that the alleged discrimination occurred. The Special Counsel will use the 20 calendar week requirement contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), for purposes of determining whether the exception of § 44.200(b)(1)(ii) applies, and will refer to the Equal Employment Opportunity Commission charges of national origin discrimination that the Special Counsel determines are covered by 42 U.S.C. 2000e-2.

    § 44.300 Filing a charge.

    (a) Who may file. Charges may be filed by:

    (1) Any injured party;

    (2) Any individual or entity authorized by an injured party to file a charge with the Special Counsel alleging that the injured party is adversely affected directly by an unfair immigration-related employment practice; or

    (3) Any officer of the Department of Homeland Security who alleges that an unfair immigration-related employment practice has occurred or is occurring.

    (b) Charges shall be filed within 180 days of the alleged occurrence of an unfair immigration-related employment practice. A charge is deemed to be filed on the date it is postmarked or the date on which the charging party otherwise delivers or transmits the charge to the Special Counsel.

    (c) Charges may be sent by:

    (1) U.S. mail;

    (2) Courier service;

    (3) Electronic or online submission; or

    (4) Facsimile.

    (d) No charge may be filed respecting an unfair immigration-related employment practice described in § 44.200(a)(1)(i) if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under title VII of the Civil Rights Act of 1964, unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this section, unless the charge is dismissed as being outside the scope of this part.

    § 44.301 Receipt of charge.

    (a) Within 10 days of receipt of a charge, the Special Counsel shall notify the charging party and respondent by certified mail, in accordance with paragraphs (b) and (c) of this section, of the Special Counsel's receipt of the charge.

    (b) The notice to the charging party shall specify the date on which the charge was received; state that the charging party, other than an officer of the Department of Homeland Security, may file a complaint before an administrative law judge if the Special Counsel does not do so within 120 days of receipt of the charge; and state that the charging party will have 90 days from the receipt of the letter of determination issued pursuant to § 44.303(b) by which to file such a complaint.

    (c) The notice to the respondent shall include the date, place, and circumstances of the alleged unfair immigration-related employment practice.

    (d)(1) If a charging party's submission is found to be inadequate to constitute a complete charge as defined in § 44.101(a), the Special Counsel shall notify the charging party that the charge is incomplete and specify what additional information is needed.

    (2) An incomplete charge that is later deemed to be complete under this paragraph is deemed filed on the date the initial but inadequate submission is postmarked or otherwise delivered or transmitted to the Special Counsel, provided any additional information requested by the Special Counsel pursuant to this paragraph is postmarked or otherwise provided, delivered or transmitted to the Special Counsel within 180 days of the alleged occurrence of an unfair immigration-related employment practice or within 45 days of the date on which the charging party received the Special Counsel's request for additional information, whichever is later.

    (3) Once the Special Counsel determines adequate information has been submitted to constitute a complete charge, the Special Counsel shall issue the notices required by paragraphs (b) and (c) of this section within 10 days.

    (e) In the Special Counsel's discretion, the Special Counsel may deem a submission to be a complete charge even though it is inadequate to constitute a charge as defined in § 44.101(a). The Special Counsel may then obtain the additional information specified in § 44.101(a) in the course of investigating the charge.

    (f) A charge or an inadequate submission referred to the Special Counsel by a federal, state, or local government agency appointed as an agent for accepting charges on behalf of the Special Counsel is deemed filed on the date the charge or inadequate submission was postmarked to or otherwise delivered or transmitted to that agency. Upon receipt of the referred charge or inadequate submission, the Special Counsel shall follow the applicable notification procedures for the receipt of a charge or inadequate submission set forth in this section.

    (g) The Special Counsel shall dismiss a charge or inadequate submission that is filed more than 180 days after the alleged occurrence of an unfair immigration-related employment practice, unless the Special Counsel determines that the principles of waiver, estoppel, or equitable tolling apply.

    § 44.302 Investigation.

    (a) The Special Counsel may seek information, request documents and answers to written interrogatories, inspect premises, and solicit testimony as the Special Counsel believes is necessary to ascertain compliance with this part.

    (b) The Special Counsel may require any person or other entity to present Employment Eligibility Verification Forms (“Forms I-9”) for inspection.

    (c) The Special Counsel shall have reasonable access to examine the evidence of any person or other entity being investigated. The respondent shall permit access by the Special Counsel during normal business hours to such books, records, accounts, papers, electronic and digital documents, databases, systems of records, witnesses, premises, and other sources of information the Special Counsel may deem pertinent to ascertain compliance with this part.

    (d) A respondent, upon receiving notice by the Special Counsel that it is under investigation, shall preserve all evidence, information, and documents potentially relevant to any alleged unfair immigration-related employment practices, and shall suspend routine or automatic deletion of all such evidence, information, and documents.

    § 44.303 Determination.

    (a) Within 120 days of the receipt of a charge, the Special Counsel shall undertake an investigation of the charge and determine whether to file a complaint with respect to the charge.

    (b) If the Special Counsel determines not to file a complaint with respect to such charge by the end of the 120-day period, or decides to continue the investigation of the charge beyond the 120-day period, the Special Counsel shall, by the end of the 120-day period, issue letters to the charging party and respondent by certified mail notifying both parties of the Special Counsel's determination.

    (c) When a charging party receives a letter of determination issued pursuant to paragraph (b) of this section, the charging party, other than an officer of the Department of Homeland Security, may file a complaint directly before an administrative law judge in the Office of the Chief Administrative Hearing Officer (OCAHO) within 90 days after his or her receipt of the Special Counsel's letter of determination. The charging party's complaint must be filed with OCAHO as provided in 28 CFR part 68.

    (d) The Special Counsel's failure to file a complaint with respect to such charge with OCAHO within the 120-day period shall not affect the right of the Special Counsel to continue to investigate the charge or later to bring a complaint before OCAHO.

    (e) The Special Counsel may seek to intervene at any time in any proceeding brought by a charging party before OCAHO.

    § 44.304 Special Counsel acting on own initiative.

    (a) The Special Counsel may, on the Special Counsel's own initiative, conduct investigations respecting unfair immigration-related employment practices when there is reason to believe that a person or other entity has engaged or is engaging in such practices, and shall notify a respondent by certified mail of the commencement of the investigation.

    (b) The Special Counsel may file a complaint with OCAHO when there is reasonable cause to believe that an unfair immigration-related employment practice has occurred no more than 180 days prior to the date on which the Special Counsel opened an investigation of that practice.

    § 44.305 Regional offices.

    The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out the Special Counsel's duties.

    Dated: August 4, 2016. Loretta E. Lynch, Attorney General.
    [FR Doc. 2016-18957 Filed 8-12-16; 8:45 am] BILLING CODE 4410-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2012-0865; A-1-FRL-9950-59-Region 1] Air Plan Approval; NH; Control of Volatile Organic Compound Emissions From Minor Core Activities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Hampshire on October 4, 2012. The revision clarifies Reasonably Available Control Technology (RACT) requirements as they apply to minor core activities of volatile organic compound (VOC) sources. The intended effect of this action is to propose approval of these requirements into the New Hampshire SIP. This action is being taken in accordance with the Clean Air Act.

    DATES:

    Written comments must be received on or before September 14, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2012-0865 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    David L. Mackintosh, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, tel. 617-918-1584, fax 617-918-0668, email [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules Section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    For additional information, see the direct final rule which is located in the Rules Section of this Federal Register.

    Dated: August 1, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2016-19125 Filed 8-12-16; 8:45 am] BILLING CODE 6560-50-P
    GENERAL SERVICES ADMINISTRATION 41 CFR Appendix C to Chapter 301, 304-2, 304-3, and 304-6 [FTR Case 2016-301; Docket No. 2016-0008, Sequence 1] RIN 3090-AJ69 Federal Travel Regulation (FTR); Clarification of Payment in Kind for Speakers at Meetings and Similar Functions AGENCY:

    Office of Government-wide Policy, U.S. General Services Administration (GSA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The General Services Administration (GSA) is proposing to amend the Federal Travel Regulation (FTR) to change the definition of “payment in kind.” As proposed, the new definition would provide that a full or partial waiver of registration fees by an organizing entity of a meeting or similar function is not considered a payment in kind to the agency when employees speak, participate in a panel, or present at the meeting or similar function in their official capacities, and registration fees are waived for all speakers, panelists, or presenters. This proposed amendment would also make miscellaneous related corrections.

    DATES:

    Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before October 14, 2016 to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments identified by FTR Case 2016-301 by any of the following methods:

    Federal eRulemaking Portals: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FTR Case 2016-301.” Select the link “Comment Now” that corresponds with “FTR Case 2016-301” and follow the instructions provided at the screen. Please include your name, company name (if any), and “FTR Case 2016-301” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), Attn. Ms. Hada Flowers, 1800 F Street NW., Washington, DC 20405.

    Instructions: Please submit comments only and cite FTR Case 2016-301 in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    For clarification of content, contact Ms. Jill Denning, Program Analyst, Office of Government-wide Policy, at 202-208-7642. Contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755, for information pertaining to status or publication schedules. Please cite FTR case 2016-301.

    SUPPLEMENTARY INFORMATION:

    A. Background

    Under 31 U.S.C. 1353, as implemented in Federal Travel Regulation Chapter 304 (41 CFR chapter 304), agencies may accept payment of travel expenses from a non-Federal source for employees to attend meetings and similar functions. Currently, with respect to a waiver of registration fees, the FTR makes no distinction between employees who speak, serve on a panel, or deliver a presentation at a meeting or similar function, and other attendees.

    Because employees speak at these types of events to further the missions of their agencies as a necessary and customary part of their work activities, GSA proposes to redefine the travel purpose codes found in Appendix C of Chapter 301, which agencies use for travel reporting purposes. GSA also proposes to change in Chapter 304 that payments in kind from non-Federal sources do not include waiver of registration-type fees for speakers, panelists, or presenters at these types of events when the fees are waived for all speakers, panelists, or presenters. The proposed amendment would permit an agency to accept a waived registration fee for the duration of a multi-day meeting or similar function, even if the employee is only presenting on one day. Other types of travel expenses paid for by a non-Federal source, such as transportation, lodging expenses, or other associated event- or similar function-related activities, will still need to be reviewed in accordance with the regulations stated in Chapter 304.

    B. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is a significant regulatory action, and therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

    C. Regulatory Flexibility Act

    This proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This proposed rule is also exempt from Administrative Procedure Act per 5 U.S.C. 553 (a)(2), because it applies to agency management or personnel.

    D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to the Federal Travel Regulation do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

    E. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

    List of Subjects in 41 CFR Appendix C to Part 301, 304-2, 304-3, and 304-6

    Government employees, travel and transportation expenses.

    Dated: August 1, 2016. Troy Cribb, Associate Administrator, Office of Government-wide Policy.

    For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, and 31 U.S.C. 1353, GSA proposes to amend 41 CFR Appendix C to chapter 301, and parts 304-2, 304-3, and 304-6 as set forth below:

    PART 301—TEMPORARY DUTY (TDY) TRAVEL ALLOWANCES 1. The authority citation for 41 CFR part 301 continues to read as follows: Authority:

    5 U.S.C. 5707.

    2. Amend Appendix C to Chapter 301, in the first table by— a. Revising the entry for Travel Purpose Identifier, next to the data element Mission (Operational), in the “description” column; and b. Revising the entry for Travel Purpose Identifier, next to the data element Conference-Other Than Training, in the “description” column.

    The revisions read as follows:

    Appendix C to Chapter 301—Standard Data Elements for Federal Travel [Traveler Identification] Group name Data elements Description *         *         *         *         *         *         * Travel Purpose Identifier Mission (Operational) Travel to a particular site in order to perform operational or managerial activities. Travel to attend a meeting to discuss general agency operations, review status reports, or discuss topics of general interest.
  • Examples: Employee's day-to-day operational or managerial activities, as defined by the agency, to include, but not be limited to: Hearings, site visit, information meeting, inspections, audits, investigations, and examinations. Travel to a conference to serve as a speaker, panelist, or provide information in one's official capacity.
  • *         *         *         *         *         *         * Conference—Other Than Training Travel performed in connection with a prearranged meeting, retreat, convention, seminar, or symposium for consultation or exchange of information or discussion. Agencies have to distinguish between conference and training attendance and use the appropriate identifier (see Training below).
  • Examples: To participate in a planned program as a host, planner, or others designated to oversee the conference or attendance with no formal role, or as an exhibitor.
  • *         *         *         *         *         *         *
    PART 304-2—DEFINITIONS 3. The authority citation for part 304-2 continues to read as follows: Authority:

    5 U.S.C. 5707; 31 U.S.C. 1353.

    4. Amend § 304-2.1 by— a. Removing from the definition “Meeting(s) or similar functions (meeting)”, introductory text, “(i.e., a function that is essential to an agency's mission)”. b. Revising the second sentence of the definition “Payment in kind”; and c. Revise the last two sentences of the definitions “Travel, subsistence, and related expenses (travel expenses)”.

    The revisions read as follows:

    § 304-2.1 What definitions apply to this chapter?

    Payment in kind * * * Payment in kind also includes waiver of any fees that a non-Federal source collects from meeting attendees (e.g., registration fees), unless the employee attending the meeting or similar function is serving as a speaker, panelist, or presenter, and the fee is waived for all speakers, panelists, or presenters at the event.

    Travel, subsistence, and related expenses (travel expenses) * * * The Foreign Affairs Manual is available for download from the internet at FAM.state.gov. The Joint Travel Regulations are available for download at http://www.defensetravel.dod.mil/site/travelreg.cfm.

    PART 304-3—EMPLOYEE RESPONSIBILITY 5. The authority citation for part 304-3 continues to read as follows: Authority:

    5 U.S.C. 5707; 31 U.S.C. 1353.

    6. Add § 304-3.10 to read as follows:
    § 304-3.10 If I am asked or assigned to participate as a speaker, panelist, or presenter at a meeting or similar function, and the organizing entity of the event waives the registration fee for all speakers, panelists, or presenters, is that a payment in kind?

    No. A full or partial waiver of a registration fee by the organizing entity of the event is not a payment in kind when provided to speakers, panelists, or presenters.

    Note to § 304-3.10:

    If registration fees are not waived for all speakers, panelists, or presenters, and instead are waived only for the Federal speakers, panelists, or presenters, then the waiver is considered to be a payment in kind, and must be reviewed under the procedures set forth in this chapter.

    PART 304-6—PAYMENT GUIDELINES 7. The authority citation for part 304-6 continues to read as follows: Authority:

    5 U.S.C. 5707; 31 U.S.C. 1353.

    8. Amend § 304-6.6 by revising paragraph (a) to read as follows:
    § 304-6.6 How do we determine the value of payments in kind that are to be reported on Standard Form (SF) 326?

    (a) For conference, training, or similar fees waived or paid by a non-Federal source, you must report the amount charged to other participants, unless the employee attended the meeting or similar function as a speaker, panelist, or presenter, and the registration fee was waived for all speakers, panelists, or presenters by the organizing entity of the event.

    [FR Doc. 2016-18556 Filed 8-12-16; 8:45 am] BILLING CODE 6820-14-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 447 [CMS-2399-P] RIN 0938-AS92 Medicaid Program; Disproportionate Share Hospital Payments—Treatment of Third Party Payers in Calculating Uncompensated Care Costs AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule addresses the hospital-specific limitation on Medicaid disproportionate share hospital (DSH) payments under section 1923(g)(1)(A) of the Social Security Act (Act), and the application of such limitation in the annual DSH audits required under section 1923(j) of the Act, by clarifying that the hospital-specific DSH limit is based only on uncompensated care costs. Specifically, this rule would make clearer in the text of the regulation an existing interpretation that uncompensated care costs include only those costs for Medicaid eligible individuals that remain after accounting for payments received by hospitals by or on behalf of Medicaid eligible individuals, including Medicare and other third party payments that compensate the hospitals for care furnished to such individuals. As a result, the hospital-specific limit calculation would reflect only the costs for Medicaid eligible individuals for which the hospital has not received payment from any source (other than state or local governmental payments for indigent patients).

    DATES:

    To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. September 14, 2016.

    ADDRESSES:

    In commenting please refer to file code CMS-2399-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    You may submit comments in one of four ways (please choose only one of the ways listed):

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2399-P, P.O. Box 8016, Baltimore, MD 21244-8016.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2399-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses prior to the close of the comment period: a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.

    (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

    b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.

    Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

    For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Wendy Harrison, (410) 786-2075 and Rory Howe, (410) 786-4878.

    SUPPLEMENTARY INFORMATION:

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://regulations.gov. Follow the search instructions on that Web site to view public comments.

    Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

    I. Background A. Legislative History

    Title XIX of the Act authorizes the Secretary of the Department of Health and Human Services (the Secretary) to provide grants to states to help finance programs furnishing medical assistance (state Medicaid programs) to specified groups of eligible individuals in accordance with an approved state plan. “Medical Assistance” is defined at section 1905(a) of the Act as payment for part or all of the cost of a list of specified care for eligible individuals. Section 1902(a)(13)(A)(iv) of the Act requires that payment rates for hospitals take into account the situation of hospitals that serve a disproportionate share of low-income patients with special needs. Section 1923 of the Act contains more specific requirements related to payments for such disproportionate share hospitals (DSH) payments. These specific statutory requirements include aggregate state level limits, hospital-specific limits, qualification requirements, and auditing requirements.

    Under section 1923(b) of the Act, a hospital meeting the minimum qualifying criteria in section 1923(d) of the Act is deemed as a DSH if it meets certain criteria. States have the option to define disproportionate share hospitals under the state plan using alternative qualifying criteria as long as the qualifying methodology comports with the deeming requirements of section 1923(b) of the Act. Subject to certain federal payment limits, states are afforded flexibility in setting DSH state plan payment methodologies to the extent that these methodologies are consistent with section 1923(c) of the Act.

    Section 1923(f) of the Act limits federal financial participation (FFP) for total statewide DSH payments made to eligible hospitals in each federal fiscal year (FY) to the amount specified in an annual DSH allotment for each state. These allotments essentially establish a finite pool of available federal DSH funds that states use to pay the federal portion of payments to all qualifying hospitals in each state. As states often use most or all of their federal DSH allotment, in practice, if one hospital gets more DSH funding, other DSH-eligible hospitals in the state get less.

    B. Hospital-Specific DSH Limit

    Section 13621 of the Omnibus Budget Reconciliation Act of 1993 (OBRA 93), which was signed into law on August 10, 1993, added section 1923(g) of the Act, limiting Medicaid DSH payments during a year to a qualifying hospital to the amount of eligible uncompensated care costs during that same year. The Congress enacted the hospital-specific limit on DSH payments in response to reports that some hospitals received DSH payment adjustments that exceeded “the net costs, and in some instances the total costs, of operating the facilities.” (H.R. Rep. No. 103-111, at 211-12 (1993), reprinted in 1993 U.S.C.C.A.N. 278, 538-39.) Such excess payments were inconsistent with the purpose of the Medicaid DSH payment, which is to ameliorate the real economic burden faced by hospitals that treat a disproportionate share of low-income patients and to ensure continued access to care for Medicaid patients. Accordingly, Congress imposed a hospital-specific limit that restricts Medicaid DSH payments to qualifying hospitals to the costs incurred by the hospital for providing inpatient and outpatient hospital services during the year to Medicaid eligible patients and individuals who have no health insurance or other source of third party coverage for the services provided during the year. Costs for providing services are “as determined by the Secretary” and are to be net of applicable payments received for those services.

    The Congress revisited the DSH payment requirements in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Public Law 108-173, enacted on December 8, 2003. The MMA added section 1923(j) to the Act, which requires states to report specified information about their DSH payments, including independent, certified audits that, among other elements, are required to review compliance with the hospital-specific limits under section 1923(g)(1)(A) of the Act. Significantly, section 1923(j)(2)(B) of the Act provides a gloss on section 1923(g)(1)(A), by specifying that the audits must verify that “Only the uncompensated care costs of providing inpatient hospital and outpatient hospital services to individuals described in paragraph (1)(A) of such subsection [1923(g) of the Act] are included in the calculation of the hospital-specific limits under such subsection.”

    Until the establishment of an audit requirement, there was no standardization among the states as to how the hospital-specific limit was calculated. In the late 1990's and early 2000's the Government Accountability Office (GAO) and the U.S. Department of Health and Human Services Office of Inspector General (OIG) issued a series of reports focusing on the hospital-specific DSH limit. Among other findings, the GAO and OIG reports identified multiple instances where states included unallowable cost or did not account for costs net of applicable payments when determining the hospital-specific limits. These reviews and audits led to the enactment, as part of the MMA, of the audit requirements at section 1923(j) of the Act. Section 1923(j) of the Act not only required that we promulgate standardized audit methods and procedures, it also provided clarity on how the hospital-specific limit should be applied. The Congress explicitly addressed any ambiguity about whether the hospital-specific limit could include costs that have been compensated by payers other than the individual or the Medicaid program. Section 1923(j)(2)(C) of the Act specifically provides that only the uncompensated care costs of providing inpatient hospital and outpatient hospital services to individuals (described in section 1923(g)(1)(A of the Act) are included in the calculation of the hospital-specific limits under section 1923(g)(1)(A) of the Act. This provision makes clear that the Congress itself specified the hospital-specific limit at section 1923(g)(1) of the Act to include only uncompensated care costs.

    As a result, it is clear that the Congress intended that FFP is not available for DSH payments that exceed a hospital's hospital-specific limit. The hospital-specific limit prevents hospitals from receiving DSH payments above the level of any net uncompensated cost incurred in the treatment of Medicaid eligible or uninsured individuals.

    As indicated in a 2008 final rule describing the required DSH audit process, 73 FR 77904, 77926 (December 19, 2008), to be considered an inpatient or outpatient hospital service for purposes of Medicaid DSH, a service must meet the federal and state definitions of an inpatient hospital service or outpatient hospital service and must be included in the state's definition of an inpatient hospital service or outpatient hospital service under the approved state plan and reimbursed under the state plan as an inpatient hospital or outpatient hospital service. While a state may have some flexibility to define the scope of inpatient or outpatient hospital services covered by the state plan, a state must use consistent definitions. Hospitals may engage in any number of activities, or may furnish practitioner, nursing facility, or other services to patients that are not within the scope of inpatient hospital services or outpatient hospital services and are not paid as such. These services are not considered inpatient or outpatient hospital services for purposes of calculating the Medicaid hospital-specific DSH limit. In passing OBRA 93 and the hospital-specific DSH limit, the Congress contemplated that hospitals with “large numbers of privately insured patients through which to offset their operating losses on the uninsured” may not warrant Medicaid DSH payments (H. Rep. 103-111, p. 211).

    C. The 2008 DSH Final Rule and Subsequent Policy Guidance

    Section 1001 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) required annual state reports and audits to ensure the appropriate use of Medicaid DSH payments and compliance with the DSH limit imposed at section 1923(g) of the Act.

    In the August 26, 2005, Federal Register we published a proposed rule entitled, “Medicaid Program; Disproportionate Share Hospital Payments” (70 FR 50262) to implement the annual DSH audit and reporting requirements established or amended by the MMA. During the public comment period, one commenter requested clarification regarding the treatment of individuals dually eligible for Medicaid and Medicare for purposes of calculating the hospital-specific DSH limit. We responded to this comment in the final rule published in the Federal Register on December 19, 2008, entitled “Medicaid Disproportionate Share Hospital Payments” (73 FR 77904) (herein referred to as the 2008 DSH final rule). As section 1923(g) of the Act limits DSH payments on a hospital-specific basis to “uncompensated costs,” the response to the comment clarified that all costs and payments associated with individuals dually eligible for Medicare and Medicaid, including Medicare payments received by the hospital on behalf of the patients, must be included in the calculation of the hospital-specific DSH limit. The extent to which a hospital receives Medicare payments for services rendered to Medicaid eligible patients must be accounted for in determining uncompensated care costs for those services.

    Following the publication of the 2008 DSH final rule, we received numerous questions from interested parties regarding the treatment of costs and payments associated with dual eligibles and Medicaid eligible individuals who also have a source of third party coverage (for example, coverage from a private insurance company) for purposes of calculating uncompensated care costs. We posted additional policy guidance titled “Additional Information on the DSH Reporting and Audit Requirements” on the Medicaid Web site at https://www.medicaid.gov/medicaid-chip-program-information/by-topics/financing-and-reimbursement/downloads/part-1-additional-info-on-dsh-reporting-and-auditing.pdf providing that all costs and payments associated with dual eligibles and individuals with a source of third party coverage must be included in calculating the hospital-specific DSH limit, as section 1923(g) of the Act limits DSH payments to “uncompensated” care costs. This additional guidance was based upon the policy articulated in the 2008 final rule and sub-regulatory guidance issued to all state Medicaid directors on August 16, 2002.

    In the August 16, 2002, letter to state Medicaid directors, we directed that when a state calculates the uninsured costs and the Medicaid shortfall for the OBRA 93 uncompensated care cost limits, it must reflect a hospital's costs of providing services to Medicaid patients and the uninsured, net of Medicaid payments (except DSH) made under the state plan and net of third party payments. Medicaid payments, include but are not limited to regular Medicaid fee-for-service rate payments, any supplemental or enhanced payments and Medicaid managed care organization payments. The guidance also stated that not recognizing these payments would overstate a hospital's amount of uninsured costs and Medicaid shortfall, thus inflating the OBRA 93 uncompensated care cost limits for that particular hospital. As state DSH payments are limited to an annual federal allotment, this policy is necessary to ensure that limited DSH resources are allocated to hospitals that have a net financial shortfall in serving Medicaid patients.

    Prior to the 2008 final rule, some states and hospitals were excluding both costs and payments associated with Medicaid eligible individuals with third party coverage, including Medicare, when calculating hospital-specific DSH limits (or were including costs while not including payments). This practice led to the artificial inflation of uncompensated care costs and, correspondingly, of hospital-specific DSH limits and permitted some hospitals to be paid based on the same costs by two payers—once by Medicare or other third party payer and once by Medicaid. The clarification included in the final rule and associated implementation promotes fiscal integrity and equitable distribution of DSH payments among hospitals by preventing payment to DSH hospitals based on costs that are covered by Medicare or a private insurer. It also promotes program integrity by ensuring that hospitals receive Medicaid DSH payments only up to the actual uncompensated care costs incurred in providing inpatient and outpatient hospital services to Medicaid eligible individuals or individuals with no health insurance or other source of third party coverage.

    Given the timing of the final rule and audit requirements, we recognized that there could have been a retroactive impact on some states and hospitals if the requirements had been imposed immediately. To ensure that states and hospitals did not experience any immediate adverse fiscal impact due to the publication of the DSH audit and reporting final rule and to foster development and refinement of auditing techniques, we included a transition period in the final rule. During this transition period, states were not required to repay FFP associated with Medicaid DSH overpayments identified through the annual DSH audits. The final rule allowed for a 3 year period between the close of the state plan rate year and when the final audit was due to us, which meant that audits for state plan rate year 2008 were not due to us until December 31, 2011. Recognizing that states would be auditing state plan rate years that closed prior to publication of the final rule, we stated in the final rule that there would be no financial implications until the audits for state plan rate year 2011 were due to us on December 31, 2014. This allowed states and hospitals to adjust to the audit requirements and make adjustments as necessary. This resulted in a transition period for the audits associated with state plan rate years 2005 through 2010.

    The 2008 DSH final rule also reiterated our policy that costs and payments are treated on an aggregate, hospital-specific basis. For purposes of this hospital-specific limit calculation, any Medicaid payments, including but not limited to regular Medicaid fee-for-service rate payments, supplemental/enhanced Medicaid payments, and Medicaid managed care organization payments, made to a disproportionate share hospital for furnishing inpatient and outpatient hospital services to Medicaid eligible individuals, which are in excess of the Medicaid incurred costs for these services, are applied against the total uncompensated care costs of furnishing inpatient and outpatient hospital services to individuals with no source of third party coverage for such services.

    In this policy verification, we explicitly acknowledge there will be instances where Medicaid payments will be greater than the cost of treating Medicaid eligible patients. However, to avoid overstating the hospital-specific limit, we nonetheless require that all Medicaid payments be included in the calculation, explaining that any “excess” payments will be applied against the uncompensated care costs that result from the uninsured calculation. The same principle applies to payments received from third party payers that exceed the cost of the service provided to a particular Medicaid eligible individual. All third party payments (including, but not limited to, payments by Medicare and private insurance) must be included in the calculation of uncompensated care costs for purposes of determining the hospital-specific DSH limit, regardless of what the Medicaid incurred cost is for treating the Medicaid eligible individual. For example, if a hospital treats two Medicaid eligible patients at a cost of $2,000 and receives a $500 payment from a third party for each individual and a $100 payment from Medicaid for each individual, the total uncompensated care cost to the hospital for is $800, regardless of whether the payments received for one patient exceeded the cost of providing the service to that individual.

    Subsequent to both the 2008 DSH final rule and the interpretive issued guidance, multiple states, hospitals, and other stakeholders expressed concern regarding this policy and requested clarification. In addition to requests for clarification, some states have challenged this policy. We have disapproved one state plan amendment proposing to exclude the portion of a Medicare payment that exceeds the cost providing a service to a dual eligible and one state plan amendment proposing to exclude the portion of a third party commercial that exceeds the cost providing a service to a Medicaid eligible individual with private insurance coverage. Additionally, some hospitals and state governments have sued us regarding the treatment of third party payers in calculating uncompensated care costs.

    In light of the statutory requirement limiting DSH payments on a hospital-specific basis to uncompensated care costs, it is inconsistent with the statute to assist hospitals with costs that have already been compensated by third party payments. This proposed rule is designed to reiterate the policy and make explicit within the terms of the regulation that all costs and payments associated with dual eligibles and individuals with a source of third party coverage must be included in calculating the hospital-specific DSH limit. This policy is necessary to ensure that only actual uncompensated care costs are included in the Medicaid hospital-specific DSH limit. And, because state DSH payments are limited to an annual federal allotment, this policy is also necessary to ensure that limited DSH resources are allocated to hospitals that have a net financial shortfall in serving Medicaid patients.

    In a simplified example, consider a state that has only two hospitals. The first hospital treated only patients who were either uninsured or eligible for Medicaid, and received no payments other than from Medicaid. The hospital-specific limit for this hospital would be equal to the hospital's total costs of treating its patients through inpatient hospital or outpatient hospital services minus the non-DSH Medicaid payments. The second hospital, on the other hand, treated only patients who were either uninsured or dually eligible for Medicaid and Medicare, and received no payments other than from Medicaid and Medicare. Under 1902(a)(13)(A)(iv) of the Act, the “situation” of the second hospital that receives comparatively generous payments from Medicare for the dual eligibles is relevantly different than the “situation” of the first hospital that has not received such payments. Our policy—that Medicare and other third party payments must be taken into account when determining a hospital's costs for the purpose of calculating Medicaid DSH payments—ensures that the DSH payment reflects the real economic burden of hospitals that treat a disproportionate share of low-income patients (i.e. the “situation” of the hospitals). Turning back to the example, the hospital-specific limit for the second hospital must take into account both the Medicaid and Medicare payments. If the hospital-specific limit did not take into account the Medicare payments, the second hospital would be able to receive DSH dollars in excess of its uncompensated care costs. As federal DSH funding is limited by the state-wide DSH allotment, the excess DSH payments to the second hospital may be at the expense of the first hospital, which could otherwise receive these DSH dollars.

    II. Specific Proposed Regulatory Changes A. Treatment of Payments Associated With Dual Eligibles and Medicaid Eligible Individuals With a Source of Third Party Coverage Under Section 1923(g) of the Act

    We are proposing to clarify the hospital-specific limitation on Medicaid DSH payments under section 1923(g)(1)(A) of the Act and annual DSH audit requirements under section 1923(j) of the Act. Specifically, this rule proposes to modify the terms of the current regulation to make it explicit that “costs” for purposes of calculating hospital-specific DSH limits are costs net of third-party payments received.

    We are proposing at § 447.299 to clarify the definition of “Total cost of care for Medicaid IP/OP services” to specify that the total annual costs of inpatient hospital and outpatient hospital (IP/OP) services must account for all third party payments, including, but not limited to payments by Medicare and private insurance.

    We are aware of at least one court that has questioned whether it is a permissible interpretation of the statute to take third party payments into account when calculating the uncompensated care costs of treating Medicaid patients. The court reasoned that because Congress had expressly stated that costs must be net of Medicaid payments, it was unreasonable to interpret the statute as allowing other payments, not specifically mentioned, to be taken into account. At this time, we respectfully disagree. We believe that our interpretation—that all third party payments should be taken into account—better reflects the real economic burden of hospitals that treat a disproportionate share of low-income patients, and accordingly, better facilitates the Congressional directive of section 1923 of the Act in general and the hospital-specific limit in particular. Additionally, we believe that the statutory language indicating that costs are “as determined by the Secretary” gives us the discretion to take Medicare and other third party payments into account when determining a hospital's costs for the purpose of calculating Medicaid DSH payments. Nevertheless, in light of the court's opinion, we request comments on this issue.

    III. Collection of Information Requirements

    This document does not impose new information collection and recordkeeping requirements, though states will continue to be required to meet annual reporting requirements in 42 CFR 447.299. The burden for these requirements is currently approved under OMB #0938-0746 with an expiration date of March 31, 2017. Consequently, this proposed rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

    IV. Response to Comments

    Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

    V. Regulatory Impact Statement A. Statement of Need

    This proposed regulation would ensure that only the uncompensated care costs for covered services provided to Medicaid eligible individuals are included in the calculation of the hospital-specific DSH limit, as required by section 1923(g) of the Act.

    B. Overall Impact

    We have examined the impacts of this rule 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). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) (Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

    A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

    The RFA requires agencies to analyze options for regulatory relief for small entities, and if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small government jurisdictions. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $7.5 million to $38.5 million in any 1 year).

    We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this proposed rule would 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 a rule 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 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this proposed rule would 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 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that is approximately $146 million. Since this rule would not mandate spending costs on state, local, or tribal governments in the aggregate, or by the private sector over the threshold of $146 million or more in any 1 year, the requirements of the UMRA are not applicable.

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

    C. Anticipated Effects 1. Effects on State Medicaid Programs

    Because this is not a change in policy, we do not anticipate that this proposed rule would have significant financial effects on state Medicaid programs. This rule would only make explicit within the terms of the regulation that “costs” for purposes of section 1923(g) of the Act are costs net of third-party payments.

    2. Effects on Other Providers

    Because this is not a change in policy, we do not anticipate that this proposed rule would have significant financial effects on other providers. This rule would only make explicit within the regulation that “costs” for purposes of section 1923(g) of the Act are costs net of amounts that have been paid by third parties and will ensure a more equitable distribution of Medicaid DSH payments within each state.

    D. Alternatives Considered

    We considered not proposing this rule. However, numerous states and other stakeholders have requested clarification regarding this requirement. Accordingly, we are proposing to make explicit within the terms of our regulation our existing policy that implements section (j) of the Act, in part.

    Additionally, we considered issuing additional policy guidance through sub-regulatory means, such as a letter to all state Medicaid directors. However, we anticipate that modifying the regulatory text of 42 CFR part 447 is as clear and comprehensive as possible on this issue, avoiding any need for future clarification.

    List of Subjects in 42 CFR Part 447

    Accounting, Administrative practice and procedure, Drugs, Grant programs-health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas.

    For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:

    PART 447—PAYMENTS FOR SERVICES 1. The authority citation for part 447 continues as follows: Authority:

    Sec. 1102 of the Social Security Act (42 U.S.C. 1302).

    2. Section 447.299 is amended by revising paragraph (c)(10) to read as follows:
    § 447.299 Reporting requirements.

    (c) * * *

    (10) Total Cost of Care for Medicaid IP/OP Services. The total annual costs incurred by each hospital for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals. The total annual costs are determined on a hospital-specific basis, not a service-specific basis. For purposes of this section, costs—

    (i) Are defined as costs net of third-party payments, including, but not limited to, payments by Medicare and private insurance.

    (ii) Must capture the total burden on the hospital of treating Medicaid eligible patients prior to payment by Medicaid. Thus, costs must be determined in the aggregate and not by estimating the cost of individual patients. For example, if a hospital treats two Medicaid eligible patients at a cost of $2,000 and receives a $500 payment from a third party for each individual, the total cost to the hospital for purposes of this section is $1,000, regardless of whether the third party payments received for one patient exceeds the cost of providing the service to that individual.

    Dated: July 19, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: July 29, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services.
    [FR Doc. 2016-19107 Filed 8-12-16; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Part 28 [Docket No. USCG-2012-0025] RIN 1625-AB85 Commercial Fishing Vessels—Implementation of 2010 and 2012 Legislation AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking; extension of public comment period.

    SUMMARY:

    The Coast Guard is extending, for 90 days, the period for submitting public comments on the notice of proposed rulemaking (NPRM). The extension responds to a request made by the public.

    DATES:

    The comment period for the NPRM published on June 21, 2016 (81 FR 40437) is extended. Comments and related material must be submitted on or before December 18, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2012-0025 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    Collection of Information. You must submit comments on the collection of information discussed in section VII.D of the NPRM both to the Coast Guard's docket and to the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. OIRA submissions can use one of the listed methods.

    Email (preferred)—[email protected] (include the docket number and “Attention: Desk Officer for Coast Guard, DHS” in the subject line of the email).

    Fax—202-395-6566.

    Mail—Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Mr. Jack Kemerer, Chief, Fishing Vessels Division (CG-CVC-3), Office of Commercial Vessel Compliance (CG-CVC), Coast Guard; telephone 202-372-1249, email [email protected]

    SUPPLEMENTARY INFORMATION:

    A. Public Participation and Request for Comments

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

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Documents mentioned in this notice and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    B. Regulatory History and Information

    We published the NPRM for this rulemaking on June 21, 2016 (81 FR 40437). It proposed to align the commercial fishing industry vessel regulations with the mandatory provisions of 2010 and 2012 legislation passed by Congress that took effect upon enactment. The alignments would change the applicability of current regulations, and add new requirements for safety equipment, vessel examinations, vessel safety standards, the documentation of maintenance, and the termination of unsafe operations. The NPRM announced a 90-day public comment period ending September 19, 2016. We have received requests for an extension of the comment period, which we have decided to grant in light of the importance of our proposed changes to the regulations, and to provide ample opportunity for commercial fishermen to review and provide their comments. With this extension, the total length of the public comment period will now be 180 days.

    This notice is issued under authority of 5 U.S.C. 552(a).

    Dated: August 9, 2016. J.G. Lantz, Director of Commercial Regulations and Standards, U.S. Coast Guard.
    [FR Doc. 2016-19272 Filed 8-12-16; 8:45 am] BILLING CODE 9110-04-P
    FEDERAL MARITIME COMMISSION 46 CFR Parts 501 and 535 [Docket No. 16-04] RIN 3072-AC54 Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984 AGENCY:

    Federal Maritime Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Maritime Commission is seeking public comments on proposed modifications to its rules governing agreements by or among ocean common carriers and/or marine terminal operators subject to the Shipping Act of 1984 and its rules on the delegation of authority to and redelegation of authority by the Director, Bureau of Trade Analysis. These proposed modifications were developed in conformity with the objectives of the 2011 Executive Order to independent regulatory agencies that aims to promote a regulatory system that protects public health, welfare, safety and our environment while promoting economic growth, innovation, competitiveness and job creation.

    DATES:

    Submit comments on or before: October 17, 2016. In compliance with the Paperwork Reduction Act, the Commission is also seeking comment on revisions to an information collection. See the Paperwork Reduction Act section under Regulatory Analyses and Notices below. Please submit all comments relating to the revised information collection to the Commission and to the Office of Management and Budget (OMB) at the address listed in the ADDRESSES section on or before October 17, 2016. Comments to OMB are most useful if submitted within 30 days of publication.

    ADDRESSES:

    You may submit comments by the following methods:

    Email: [email protected] Include in the subject line: “Docket 16-04, [Commentor/Company name].” Comments should be attached to the email as a Microsoft Word or text-searchable PDF document. Only non-confidential and public versions of confidential comments should be submitted by email.

    Mail: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001.

    Docket: For access to the docket to read background documents or comments received, go to the Commission's Electronic Reading Room at: http://www.fmc.gov/16-04.

    Confidential Information: The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If your comments contain confidential information, you must submit the following:

    • A transmittal letter requesting confidential treatment that identifies the specific information in the comments for which protection is sought and demonstrates that the information is a trade secret or other confidential research, development, or commercial information.

    • A confidential copy of your comments, consisting of the complete filing with a cover page marked “Confidential-Restricted,” and the confidential material clearly marked on each page. You should submit the confidential copy to the Commission by mail.

    • A public version of your comments with the confidential information excluded. The public version must state “Public Version—confidential materials excluded” on the cover page and on each affected page, and must clearly indicate any information withheld. You may submit the public version to the Commission by email or mail.

    FOR FURTHER INFORMATION CONTACT:

    For questions regarding submitting comments or the treatment of confidential information, contact Karen V. Gregory, Secretary. Phone: (202) 523-5725. Email: [email protected] For technical questions, contact Florence A. Carr, Director, Bureau of Trade Analysis. Phone: (202) 523-5796. Email: [email protected] For legal questions, contact Tyler J. Wood, General Counsel. Phone: (202) 523-5740. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Introduction

    The Federal Maritime Commission (FMC or Commission) issued an Advance Notice of Proposed Rulemaking (ANPR) to obtain public comments on proposed modifications to its regulations in 46 CFR part 535, Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984, and 46 CFR 501.27, Delegation to and redelegation by the Director, Bureau of Trade Analysis. 81 FR 10188 (Feb. 29, 2016). The ANPR was issued pursuant to Executive Order 13579 (E.O. 13579), Regulation and Independent Regulatory Agencies (July 11, 2011), and the Commission's corresponding Plan for the Retrospective Review of Existing Rules. 1 Under this plan, the Commission requested and received comments on how to improve its existing regulations and programs. With respect to part 535, comments with specific recommendations on regulatory modifications were submitted by ocean carrier members of major discussion agreements effective under the Shipping Act.2

    1 The Commission's Plan for the Retrospective Review of Existing Rules (Nov. 4, 2011) and Update to Plan for Retrospective Review of Existing Rules (Feb. 13, 2013) are published on the FMC home page under About the FMC/Report, Strategies, and Budget.

    2Comments of Ocean Common Carriers to Retrospective Review of Existing Rules, dated May 18, 2012, are published on the FMC home page under www.fmc.gov/16-04.

    The proposed modifications in the ANPR were based on the Commission's comprehensive review of its regulations in parts 501 and 535, including review of the modifications recommended in the comments submitted by the carriers. In the ANPR, the Commission sought public comments on possible changes to the following regulations: (1) The definition of capacity rationalization in § 535.104(e), a new waiting period exemption for space charter agreements in § 535.308, and the waiting period exemption for low market share agreements in § 535.311; (2) the agreement filing exemption of marine terminal services agreements in § 535.309; (3) the standards governing complete and definite agreements in § 535.402 and agreement activities that may be conducted without further filing in § 535.408; (4) the Information Form requirements in subpart E of part 535; (5) the filing of comments on agreements in § 535.603 and the request for additional information on agreements in § 535.606; (6) the agreement reporting requirements in subpart G of part 535; and (7) non-substantive modifications to update and clarify the regulations in parts 501 and 535.

    In response to the ANPR, seven sets of comments were received from interested parties. These parties are the ocean common carriers and agreements (carriers); 3 the National Association of Waterfront Employers (NAWE); the Pacific Merchant Shipping Association (PMSA); the Port of NY/NJ Sustainable Terminal Services Agreement, and the Port of NY/NJ-Port Authority/Marine Terminal Operator Agreement (Port of NY/NJ); the West Coast MTO Agreement, the Oakland MTO Agreement, and their members (WCMTOA/OAKMTOA), the South Carolina Port Authority (SCPA); and the National Customs Brokers and Forwarders Association of America, Inc. (NCBFAA). Under this Notice of Proposed Rulemaking (NPR), the Commission addresses the comments to the ANPR and seeks further public comments on the proposed modifications to its regulations in parts 501 and 535.

    3 The carriers are the members to the ABC Discussion Agreement, Australia and New Zealand-United States Discussion Agreement, Caribbean Shipowners Association, Central American Discussion Agreement, Transpacific Stabilization Agreement, U.S./Australasia Discussion Agreement, Venezuelan Discussion Agreement, and the West Coast of South America Discussion Agreement.

    II. The Definition of Capacity Rationalization in § 535.104(e), a New Exemption for Space Charter Agreements in § 535.308, and the Exemption for Low Market Share Agreements in § 535.311 A. Background

    To receive immunity from the U.S. antitrust laws, the Shipping Act of 1984 (Shipping Act or Act) requires that parties file a true copy of their agreement with the Commission, 46 U.S.C. 40302, and that agreement filings be subject to an initial review period of 45 days before they may become effective, 46 U.S.C. 40304(c). The regulations in § 535.311 provide an exemption from the 45-day waiting period for low market share agreements that do not contain certain types of authority, such as rate or capacity rationalization authority.4 To qualify for this exemption, the combined market shares of the parties in any of the affected sub-trades must be less than 30 percent (if all of the parties are members of another agreement in the same trade or sub-trade with one of the excluded authorities (e.g., rate or capacity rationalization)) or 35 percent (if at least one party is not a member of such an agreement in the same trade or sub-trade). The regulations in § 535.104(e) define capacity rationalization to mean a concerted reduction, stabilization, withholding, or limitation in any manner whatsoever by ocean common carriers on the size or number of vessels or available space offered collectively or individually to shippers in any trade or service.

    4 These authorities are listed under § 535.502(b) as: (1) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge; (2) the discussion of, or agreement on, capacity rationalization; (3) the establishment of a joint service; (4) the pooling or division of cargo traffic, earnings, or revenues and/or losses; or (5) the discussion of, or agreement on, any service contract matter.

    Agreements that contain capacity rationalization authority do not qualify for an exemption from the waiting period under § 535.311. Further, such agreements are assigned specific Information Form and Monitoring Report requirements. Although the definition could be interpreted quite broadly in the context of operational agreements, the Commission has, in practice, limited it to meaning agreements that fix the supply of capacity, such as vessel sharing and alliance agreements, and include exclusivity provisions 5 on the ability of the parties to operate outside of the agreement.

    5 Exclusivity provisions place conditions or restrictions on the parties' agreement participation, and/or use or offering of competing services within the geographic scope of the agreement. In effect, they are non-compete clauses.

    In its ANPR, the Commission considered clarifying the definition of capacity rationalization to mean the authority in an agreement by or among ocean common carriers to discuss, or agree on, the amount of vessel capacity supplied by the parties in any service or trade within the geographic scope of the agreement. The Commission explained that the proposed definition would apply to voluntary discussion agreements between carriers where the parties discuss and/or agree on the amount of vessel capacity supplied in a trade. On an operational level, the proposed definition would apply to all forms of vessel sharing agreements (VSAs) between carriers where the parties discuss and/or agree on the number, capacity, and/or allocation of vessels or vessel space to be shared in the operation of a service between the parties to the agreement. Further, to avoid confusion, the proposed definition would apply to all such identified capacity agreements regardless of whether they contain any form of exclusivity clauses. As such, this definition would exclude all VSAs from qualifying for a low market share exemption.

    The Commission also introduced a new potential waiting period exemption in § 535.308 that would apply to agreements among ocean common carriers that contain non-exclusive authority to charter or exchange vessel space between two individual carriers and do not contain any authority identified in § 535.502(b) (i.e., forms of rate, pooling, service contract or capacity rationalization authorities). The Commission explained that non-exclusive authority means that the agreement contains no provisions that place conditions or restrictions on the parties' agreement participation, and/or use or offering of competing services. The Commission explained that a waiting period exemption was better suited for such space charter agreements because there is more of an operational urgency for them to become effective upon filing.

    The Commission further considered simplifying the application of the low market share exemption in § 535.311 by eliminating the lower market share threshold of 30 percent in cases where the parties to the agreement are members of another agreement in the same trade or sub-trade containing any of the authorities identified in § 535.502(b) (i.e., forms of rate, pooling, service contract or capacity rationalization authorities). As such, the market share threshold would be set at 35 percent or less regardless of whether the parties to the agreement participate in any other agreements in the same trade or sub-trade. The Commission explained that the application of the tiered 30 and 35 percent threshold (based on the parties' participation in other agreements by sub-trade) is unnecessarily complicated and time consuming for the industry to analyze. Further, with the proposed modification to the definition of capacity rationalization, only simple operational agreements would be eligible for the exemption, such as space charter and sailing agreements, that would not otherwise be automatically exempted under the proposed space charter exemption in § 535.308. Accordingly, the Commission stated that limiting the low market share exemption to such simple operational agreements would reduce the competitive concerns about the parties' participation in other agreements in the same trade or sub-trade and eliminate the need for the lower 30 percent market share threshold.

    B. Summary of Comments

    The carriers were the only interested parties that submitted comments on these proposals. On the definition of capacity rationalization, the carriers favor retaining the present definition in § 535.104(e), which they argue was intended to include: (i) An agreement that prohibits or restricts the introduction of vessels into the agreement trade in a service other than that operated under the agreement; (ii) an agreement that prohibits or restricts the use of space on non-agreement vessels in the agreement trade by an agreement party (e.g., chartering space from a non-agreement carrier); and (iii) an agreement that results in an artificial withholding of vessel capacity (i.e., a “roping off” of a portion of vessel capacity). Carriers at 4. The carriers recommend that if the Commission wants to clarify the definition, it should be revised to reflect this intended meaning and proposes the following definition:

    Capacity rationalization means any agreement between or among two or more ocean common carriers that: (i) Restricts or limits the ability of any or all those carriers to provide transportation in one or more trades covered by the agreement on vessels other than those utilized under that agreement; (ii) restricts or limits the ability of any or all of those carriers to provide services that are alternate to or in competition with the services provided under that agreement; or (iii) which results in the withholding of vessel capacity on vessels being operated in the trade covered by that agreement. The term does not include adjustments to capacity made by adding or removing vessels or strings of vessels pursuant to and within the existing authority of a filed and effective agreement.

    Carriers at 12.

    The carriers further argue that the Commission's proposed definition and its application under the low market share exemption would potentially subject many more agreements to the 45-day waiting period and quarterly monitoring reports, regardless of their impact or market share. Further, time sensitive modifications of such agreements would also be subjected to the waiting period. While they acknowledge that the regulations in § 535.605 allow for expedited review of agreements on request, the carriers claim that Commission staff is burdened by such requests and a fee is being proposed for each such request in another Commission rulemaking. They further explain that the filing fee for non-exempt agreements is much higher than the fee for exempt agreements, and the Commission is proposing to raise the fees. Carriers at 7.

    The carriers believe that the Commission's proposed definition of capacity rationalization assumes that any agreement where the parties agree on vessels results in a reduction in capacity, which they state is untrue and provide examples of such. They argue that even if an agreement reduces capacity, it is not a concern in trades suffering from excess capacity, and where agreements do not contain exclusivity provisions, the parties are free to pursue their own commercial objectives. Carriers at 8-9.

    The carriers find the Commission's proposed definition to be unclear and overly broad and are concerned that it may be interpreted to include unintended forms of agreements. They explain that simple space charter agreements may allocate vessel space and/or set forth the number and size of vessels to be provided by the carrier selling the space. Further, they contend that subjecting more agreements to the 45-day waiting period reduces the carriers' operational flexibility and responsiveness to demand and imposes a serious administrative burden on carriers and Commission staff by requiring more agreements to file Information Forms and Monitoring Reports. Carriers at 9-10.

    On the proposed exemption for space charter agreements in § 535.308, the carriers are supportive of the exemption but believe that the Commission's proposed definition for capacity rationalization creates uncertainty in distinguishing which agreements would qualify for the exemption. The carriers also see no reason why the exemption is limited to two party agreements and believe that space charter agreements involving more than two parties should be exempted as well. Carriers at 12.

    On the proposed single 35 percent threshold for the low market share exemption in § 535.311, the carriers support the proposed modification but continue to argue that the market share should be based on the agreement-wide trade, rather than sub-trade. Carriers at 13.

    C. Discussion

    The Commission is unpersuaded by the carriers' arguments and does not believe that its proposed modifications to these sections, as set forth in the ANPR, should be altered. The requirements of the Shipping Act are clear. Agreements by or between ocean common carriers and/or marine terminal operators (MTOs) on matters set forth in 46 U.S.C. 40301 must be filed with the Commission to receive immunity from the U.S. antitrust laws and are subject to an initial review period of 45 days before they may become effective, except for assessment agreements.6 The Commission may at its discretion exempt by order or rule any class of agreements or activities of parties to agreements, if it finds that the exemption will not result in a substantial reduction in competition or be detrimental to commerce. Further, the Commission may attach conditions to an exemption and may, by order, revoke an exemption. 46 U.S.C. 40103.

    6 An assessment agreement is an agreement, whether part of a collective bargaining agreement or negotiated separately, that provides for collectively bargained fringe benefit obligations on other than a uniform man-hour basis regardless of the cargo handled or type of vessel or equipment utilized. 46 U.S.C. 40102. Assessment agreements must be filed with the Commission and are effective upon filing. 46 U.S.C. 40305(a)

    The ANPR explained in detail the basis for the present low market share exemption and the definition of capacity rationalization, as well as the need to modify these regulations. At present, almost any form of agreement involving capacity could fall within the current definition of capacity rationalization. Even agreements that simply coordinate sailing schedules among the parties can impose a concerted limitation on capacity as described under the present definition. The ambiguity of the definition has created uncertainty over which types of agreements would qualify for a low market share exemption under § 535.311. As discussed above, the Commission has, in practice, limited the definition to mean agreements that fix the supply of capacity, such as vessel sharing and alliance agreements, and include exclusivity provisions on the ability of the parties to operate outside of the agreement. Operational agreements between carriers to fix capacity with exclusivity provisions are viewed as one of the most potentially anticompetitive forms of capacity rationalization.

    Technically, however, the Commission views an agreement on the amount of vessel capacity supplied in a service or trade as the rationalization of capacity between carriers, and is proposing to clarify the definition of capacity rationalization to reflect this view. Under the application of U.S. antitrust law, agreements between competitors to fix supply in a market are viewed as potentially harmful and anticompetitive, and, like agreements between competitors to fix prices, are per se illegal, regardless of and without any examination of their purported purposes, harms, benefits, or effects.7 Per se illegal agreements are not acceptable activities that are permitted within a “safety zone” for collaboration between competitors under the FTC/DOJ guidelines.8 In part, it was this principle of a “safety zone” of competitor collaboration that was used as a basis for the low market share exemption.9

    7Antitrust Guidelines for Collaborations Among Competitors, issued by the Federal Trade Commission and the U.S. Department of Justice (FTC/DOJ), April 2000, p. 3.

    8Ibid, p. 26.

    9 69 FR 64398, 64399-64400 (Nov. 4, 2004).

    At the time of the previous rulemaking in 2004, many of the vessel sharing and alliance agreements contained exclusivity clauses and even rate authority. Since that time, agreements that manage capacity have changed and continue to evolve, which supports the need for the Commission's review and update of its present regulations. Carriers are expanding their cooperation of services through larger alliances and using service centers to manage capacity. Such agreements authorize the parties to exchange vessel space and agree on capacity to form and operate collective services and VSAs in the global liner trades. The Commission tentatively affirms that agreements with such authority clearly rationalize capacity, and therefore should not be exempted from the waiting period under § 535.311, regardless of whether exclusivity provisions are imposed on the parties.

    The Commission emphasizes that the proposed definition of capacity rationalization does not mean that every agreement that contains such authority necessarily presents competitive concerns. The Commission acknowledges that VSAs and alliances can promote economic efficiencies and cost savings in the offering of services to shippers. Depending on market conditions, however, agreements with such a direct impact on capacity, especially in trades where their parties may discuss and agree on rates, can potentially be used to reduce competition and unreasonably affect transportation services and costs within the meaning of section 6(g) of the Act (46 U.S.C. 41307(b)), which justifies a thorough initial review of their competitive impact under the 45-day waiting period.

    In their comments, the carriers propose an alternative definition of capacity rationalization that would appear to limit it to agreements that impose exclusivity provisions, or artificially withhold, i.e., “rope off,” vessel capacity, as contemplated in the old definition of “capacity management,” which the Commission replaced with the definition of “capacity rationalization” in the 2004 Final Rule.10 The carriers' definition is identical in meaning to their alternative definition proposed in the Commission's previous rulemaking in 2004.11 In that rulemaking, the Commission rejected the carriers' proposed definition and reasoned that:

    10 Previously, the definition in § 535.104(e) was limited to capacity management, which was defined as an agreement between two or more ocean common carriers that authorized withholding some part of the capacity of the parties' vessels from a specified transportation market, without reducing the real capacity of those vessels.

    11 69 FR at 64401.

    We decline to adopt the definition suggested by OCCA, as it would omit some conference and discussion agreements that contain authority for members to discuss and agree upon rationalization of capacity by members in specific trades. In addition, the Commission continues to be of the view expressed in the NPR that the potential effects of such arrangements are heavily dependent on conditions particular to an agreement trade and how the agreement is related to other agreements.12

    12Ibid.

    For these same reasons, tentatively, the Commission finds the carriers' proposed definition in this rulemaking to be deficient and again declines to adopt it. The carriers' proposed definition seems to reflect past trends in carrier agreements as opposed to current trends, and part of the purpose of this rulemaking is to update and correct part 535 to reflect current carrier agreements. As explained above, while limiting the application of capacity rationalization to operational agreements with exclusivity provisions may have been appropriate in the past, carrier agreements have evolved since 2004 and are continuing to evolve. The Commission's proposed definition seeks to clarify the meaning of capacity rationalization as the authority to discuss, or agree on, the amount of vessel capacity supplied in a service or trade, which includes VSAs and alliances as well as voluntary discussion agreements with such authority. The Commission believes its proposed definition accurately captures the practice of capacity rationalization and narrows the scope and application of the present definition in a way that is preferable to the current practice of informally applying additional limitations that are not explicitly included in the current definition, such as the presence or absence of exclusivity provisions.

    Likewise, the practice of implementing capacity management programs to “rope off” vessel space in a trade has become obsolete, and the inclusion of such practices in the definition would have no application in the present day. In place of such programs, carriers have increased their cooperation in VSAs and alliances, and utilize service centers to manage and maintain set capacity levels among the parties. Further, under the carriers' proposed definition, to state that the term does not include adjustments to capacity made by adding or removing vessels or strings of vessels pursuant to and within the existing authority of a filed and effective agreement would likely exclude almost every VSA and alliance agreement, regardless of whether it contains exclusivity provisions.

    The carriers assert that the Commission's proposed definition assumes that any agreement where the parties agree on vessels results in a reduction in capacity. The Commission does not make any such assumption; however, the Commission must analyze agreement filings during the initial review period to determine their competitive impact in the trades where the parties operate. The Commission's proposed definition would provide for this initial review of VSAs and alliances before they take effect under the Shipping Act.

    The carriers further assert that the Commission's proposed definition could include unintended forms of agreements, such as simple space charter agreements that allocate vessel space or specify the number and size of vessels. On the contrary, the Commission believes that its proposed definition would more clearly and narrowly define the meaning of capacity rationalization to correct the overly broad ambiguity of the present definition, which could be interpreted to include almost any form of agreement involving vessel capacity. It is the interpretation of the Commission that space charter agreements can be distinguished from VSAs in that the parties to space charter agreements traditionally are not authorized to discuss or agree on the amount of vessel capacity to be deployed in a service or trade, which would place a concerted limit or restriction on the supply of vessel capacity made available by the parties. Referencing the number or size of vessels in a space charter agreement is not the same as providing the authority for the parties to discuss and agree on the amount of vessel capacity in a service or trade. The Commission believes that this distinction is made clear in § 535.104(gg) by the definition that:

    Space charter agreement means an agreement between ocean common carriers whereby a carrier (or carriers) agrees to provide vessel space for use by another carrier (or carriers) in exchange for compensation or services. The arrangement may include equipment interchange and receipt/delivery of cargo, but may not include capacity rationalization as defined in this subpart.

    A VSA, on the other hand, generally authorizes space chartering but also involves two or more carriers contributing and sharing vessels and vessel space to form and collectively operate a liner service, and such authority to discuss and agree on the amount of vessel capacity the parties plan to make available in their service is explicitly stated in the agreement.

    The carriers complain that the Commission's proposal would subject more agreements and modifications to agreements to the 45-day waiting period, reporting, and higher filing fees. The carriers fail to consider the corresponding reduction in filings associated with the Commission's proposed exemption for space charter agreements in § 535.308. As noted in the ANPR, in terms of the overall impact of its proposed modifications to agreement filings, the Commission estimated that the filing burden could actually be reduced.13 In addition, the carriers requested and the Commission is proposing in this rulemaking that agreement modifications to reflect changes in the number or size of vessels within the range specified in an agreement (which would include VSAs and alliances) should be exempt from the waiting period as non-substantive modifications in § 535.302. In terms of reporting, the proposed Information Form and Monitoring Report 14 would simply require parties to VSAs and alliances to file certain service and vessel capacity data, which any party to such agreements readily tracks and has available. The most reliable sources of information on an agreement are the parties to the agreement.15 In cases where agreement parties believe reporting is unnecessary or too onerous, the parties may apply for a waiver in accordance with the regulations in § 535.705.

    13 Based on new and amended agreement filings for fiscal year 2014, the Commission estimates that 15 filings that were effective on filing under the low market share exemption would be subject to the 45-day waiting period as a result of the proposed revisions to the definition of capacity rationalization. Conversely, 20 filings that were subject to the 45-day waiting period would be effective on filing as new two-party space charter agreements or amendments thereof under the new proposed exemption. In fiscal year 2014, there were a total of 186 agreement filings, including new and amended agreements. 81 FR at 10192.

    14 The Monitoring Report would only require reporting from agreements authorizing capacity rationalization that involve three or more carrier parties.

    15 2003 NPR, 68 FR 67510, 67522 (Dec. 2, 2003).

    On the proposed space charter exemption in § 535.308, the carriers believe that agreements involving more than two parties should be exempted as well. The Commission points out that space charter agreements involving more than two parties may qualify for a low market share exemption in § 535.311, where the market share of the parties in any of the agreement's sub-trades is equal to or less than 35 percent and the agreement does not contain forms of rate or capacity rationalization authority, as proposed. Cases where a space charter agreement would not qualify under either waiting period exemption are generally rare, and the Commission believes that such agreements would require a full review under the 45-day waiting period. For instance, such cases have occurred in the past when a carrier decides to remove all of its vessels from a trade and enter into a space charter agreement with an alliance or a large VSA, which exceeded the threshold for the low market share exemption. In these cases, the Commission would need to examine the probable competitive impact of the removal of vessel space from the trade and the resulting market supply and demand levels, under a full 45-day review.

    The carriers continue to argue that the market share threshold for the low market share exemption in § 535.311 should be based on the agreement-wide trade, rather than sub-trade. The ANPR addressed this matter at length.16 The Commission does not believe that the exemption should be modified in this manner because it could result in agreements taking effect upon filing without an initial review where the parties hold a competitively significant share of the market in the smaller sub-trades. Further, using an agreement-wide threshold may encourage parties to structure their agreements as broadly as possible to evade the waiting period by setting their scopes at a regional, continental, or worldwide level rather than by the applicable trade lane.

    16 81 FR at 10191.

    Based on the foregoing, the Commission is proposing the modifications to § 535.104(e), § 535.308, § 535.311 as described in the ANPR without any changes. The Commission requests additional comments on these proposals.

    III. Marine Terminal Services Agreements in § 535.309 A. Background

    Section 535.309 provides an exemption from the filing and waiting period requirements of the Act for terminal services agreements 17 between MTOs and ocean carriers to the extent that the rates, charges, rules, and regulations of such agreements were not collectively agreed upon under a MTO conference agreement.18 Parties may optionally file their terminal services agreements with the Commission. 46 CFR 535.301(b). If the parties decide not to file the agreement, however, no antitrust immunity is conferred with regard to terminal services provided under the agreement. 46 CFR 535.309(b)(2). Parties to any agreement exempted from filing by the Commission under Section 16 of the Act, 46 U.S.C. 40103, are required to retain the agreement and make it available to Commission staff upon request during the term of the agreement and for a period of three years after its termination. 46 CFR 535.301(d).

    17 Section 535.309(a) defines marine terminal services agreement to mean an agreement, contract, understanding, arrangement, or association, written or oral, (including any modification or appendix) between a marine terminal operator and an ocean common carrier that applies to marine terminal services that are provided to and paid for by an ocean common carrier. These services include: Checking, docking, free time, handling, heavy lift, loading and unloading, terminal storage, usage, wharfage, and wharf demurrage and including any marine terminal facilities that may be provided incidentally to such marine terminal services.

    18 Section 535.309(b)(1) defines a marine terminal conference agreement as an agreement between or among two or more marine terminal operators and/or ocean common carriers for the conduct or facilitation of marine terminal operations that provides for the fixing of and adherence to uniform maritime terminal rates, charges, practices and conditions of service relating to the receipt, handling, and/or delivery of passengers or cargo for all members.

    In the ANPR, the Commission indicated that it was reconsidering this exemption with the view toward requiring certain terminal services agreement information to be submitted to the FMC because of the increased cooperation of MTOs in conference and discussion agreements. Within the past decade, MTOs at major U.S. ports have become more active in cooperating through agreements to implement new programs addressing security and safety measures, environmental standards, and port operations and congestion. While such programs may potentially be beneficial, agreements between MTOs can also affect competition in the terminal services market and reduce transportation services and costs within the meaning of section 6(g), such as agreements on the levels of free-time, detention, and demurrage charged by MTOs to port users. Under the exemption, as MTOs have increased their cooperation under agreements, no empirical data on the terminal services market has been readily available to the Commission to analyze the competitive impact of such cooperative programs and activities. The filing of terminal services agreements would provide the Commission with timely market data to analyze and monitor the competitive impact of programs and activities of MTOs in agreements.

    In the ANPR, the Commission considered a standard Monitoring Report requirement to provide that all of the MTOs participating in any conference or discussion agreement on file and in effect with the FMC, submit to the FMC all of their effective terminal services agreements and amendments thereto. The Commission invited public comments on this proposed Monitoring Report requirement for MTOs, along with estimates of the probable reporting burden. In addition, recommendations from commenters were solicited on alternative Monitoring Report requirements for MTOs. Further, the Commission considered modifying § 535.301 to establish a procedure by which staff would send a written request for exempted agreements and the parties would have 15 days to respond.

    B. Summary of Comments

    Comments on these proposals were submitted by the carriers, NAWE, PMSA, Port of NY/NJ, WCMTOA/OAKMTOA, and SCPA. None of the interested parties that submitted comments favor a Monitoring Report requirement for MTO parties to conference and discussion agreements to submit their terminal services agreements to the FMC. All of the commenters presented similar arguments opposing the proposed requirement.

    Commenters argue that the submission of terminal services agreements would be unduly burdensome from an administrative and cost perspective to both the industry and Commission. They explain that terminal services agreements are frequently amended on such matters as operating conditions, equipment variations, labor issues, environmental laws, port requirements, inland transport issues and numerous other factors. They claim that the burden would be too onerous if amendments had to be filed with the FMC every time adjustments are made to their terminal services agreements. NAWE also notes that under the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, 129 Stat. 1312 (Dec. 4, 2015), substantial reporting requirements on port performance statistics will likely be imposed on MTOs, and it cautions against imposing simultaneous overlapping regulatory burdens. NAWE at 5.

    SCPA stresses that unlike most port authorities, as a marine terminal operating port, it must meet the same regulatory requirements as private MTOs. SCPA at 4. As such, SCPA finds the proposed requirement to be unnecessarily broad, and believes that a more narrowly defined rule could address the Commission's concerns without unduly burdening operating ports. SCPA at 6.

    Commenters argue that the filing of their terminal services agreements would have little or no regulatory value in analyzing the impact of MTO conference and discussion agreements or understanding the terminal services market. They explain that for the most part, terminal services agreements are negotiated on an individual and confidential basis between the MTO and the carrier, and MTOs actively compete against each other for carrier business. They reason that terminal services agreements containing any matters collectively agreed upon under an MTO conference or discussion agreement are already required to be filed with the FMC pursuant to § 535.309(b)(1),19 and as such, the FMC is being provided with the necessary information to monitor the impact of the MTO conference or discussion agreement. Both PMSA and NAWE noted that because there are only a few terminal services agreements on file with the FMC, this is evidence that MTO agreements have no real impact on the terms of individually negotiated terminal services agreements. PMSA at 1-2 and NAWE at 3.

    19 At present, there are 19 terminal services agreements on file at the FMC.

    Commenters further reason that MTO conferences and discussion agreements are required to file minutes of their meetings under the regulations and some agreements provide monitoring data. Thus, they contend that the Commission already receives a sufficient amount of information to monitor MTO agreements. Also, instead of a blanket Monitoring Report requirement, when the Commission may need specific information, the Commission has the authority to request terminal services agreements through a more focused inquiry on an ad hoc basis. The carriers support the proposed modifications to § 535.301 for a deadline to a written request, noting that such procedures provide greater certainty of receiving the requested agreements in a timely manner. Carriers at 15.

    In terms of the terminal services market, commenters argue that conclusions cannot be drawn from comparing terminal services agreements. They explain that the characteristics of marine terminals are unique from each other in their physical configurations, efficiency levels, operating procedures, and customer needs. Terminals have different berthing capabilities, equipment, customers with different vessels and cargo volumes, and attempting to understand the market by comparing terminal services agreements is not valid without accounting for the unique features of each marine terminal. Commenters contend that even if comparisons of terminal services agreements provided some conclusion about the market, it would shed no light on the activities of MTO conference or discussion agreements.

    Commenters believe that the proposed requirement could also discourage MTOs from joining and participating in agreements that develop and implement beneficial programs addressing such critical matters as air emissions, security, and port operations and congestion, and as such, the Commission would be acting in a manner that hinders such beneficial programs. SCPA added that new groupings of carrier alliances are placing novel demands on ports and MTOs, and the proposed requirement would stifle, rather than encourage innovation. SCPA at 6.

    Further, Commenters stress that terminal services agreements contain extremely sensitive and competitively significant information on not only rates, but duration, throughput and other items. They caution that if such information were disclosed (whether through subpoena, FOIA request, Congressional inquiry or otherwise), the parties to the agreement could suffer serious commercial harm. In this regard, the carriers request that if the Commission proceeds with the proposed requirement, regulations be added specifically protecting terminal services agreements from disclosure under 46 U.S.C. 40306. Carriers at 16.

    The carriers conclude by recommending that the Commission discontinue its proposed Monitoring Report requirement for MTOs in favor of its proposed modifications to § 535.301. However, if the Commission chooses to proceed with the proposed requirement, the carriers request that § 535.309(b)(2) be revised to provide that the parties to the terminal services agreements be granted antitrust immunity, as the agreements would be in the possession of the Commission. Carriers at 16.

    C. Discussion

    The Commission disagrees with the idea that terminal services agreements have no value in analyzing the impact of MTO conference and discussion agreements or understanding the terminal services market. A terminal services agreement between an MTO and a carrier is an agreement that by statute is required to be filed with the FMC and subject to the 45-day review period,20 but was exempted from the filing requirements by the Commission in a final rule in 1992.21 The Commission may amend its exemption, or revoke it entirely, if the Commission finds that the circumstances that merited the exemption have materially changed.

    20 46 U.S.C. 40301-40304.

    21 57 FR 4578 (Feb. 6, 1992).

    Terminal services agreements directly reveal the extent to which rates, terms, and programs agreed upon by MTOs in conference and discussion agreements have been implemented in the market. A review of terminal services agreements can provide a basis for the Commission to gauge the competitive impact and costs of actions by MTOs in conference and discussion agreements, and the extent to which any Commission action may be necessary. Further, terminal services agreements show the extent to which MTOs are competing on pricing and other terms, which provides the Commission with an understanding of the competitive structure of the terminal services market at a port and between ports. A uniformity of pricing and terms between MTOs at a port or ports would indicate a lack of competition in the terminal services market that may be attributable to the actions of MTOs in conference and discussion agreements.

    In its review of a sampling of terminal services agreements in connection with the Pacific Ports Operational Improvements Agreement (PPOIA), FMC No. 201227,22 the Commission gleaned useful information on the rates and competitive structure of the terminal services market at U.S. Pacific ports, which it would not otherwise have been able to discern without requesting and reviewing the terminal services agreements of the PPOIA parties. In its regulatory oversight of carrier and MTO agreements, the Commission strives to obtain and utilize the most accurate information to monitor the competitive impact of agreements, particularly where there are complaints against the agreement, as in the case of PPOIA.

    22 By Order on July 10, 2015, the Commission requested certain terminal service agreements from carrier parties to PPOIA.

    As such, the Commission finds the commenters' arguments dismissing the relevance of terminal services agreements to be unpersuasive. While affected by various cost factors, container terminal operations at a port, or between ports, are not so different that the rates and terms of the terminal services offered by MTOs cannot be directly compared. While the exemption in § 535.309 does not apply to rates, charges, rules, and regulations of an MTO conference, it does not exclude from the exemption rates, charges, rules and programs established under a MTO discussion agreement, which is voluntary on the parties. It is this increased activity of MTOs under discussion agreements, such as the PierPASS program under WCMTOA, that has caused the most concern among consumers and affected third parties and which the Commission has endeavored to monitor more closely. Minutes of agreement meetings reveal the decisions made under an MTO conference or discussion agreement; however, market data is needed to determine the competitive impact of the agreement decisions, and few MTO agreements are required to provide consistent market data.

    On concerns of filing burden and confidentiality, the Commission does not believe that a Monitoring Report requirement to submit terminal services agreements and their amendments would be too onerous a burden on MTOs. The filing would require little, if any, preparation. A copy of the agreement and its amendments could be electronically and securely filed with the FMC in the same manner that service contracts and their amendments are filed, which in fiscal year 2015 exceeded 700,000 filings.

    As a Monitoring Report requirement, the submission of terminal services agreements could be protected from public disclosure under 46 U.S.C. 40306 and the regulations in § 535.701(i), which protects information provided by parties to a filed agreement from being disclosed in response to a Freedom of Information Act (FOIA) request.

    On the other hand, the Commission tentatively agrees with the commenters that, at the present time, imposing a standard Monitoring Report requirement on all of the MTO conference and discussion agreements may be unnecessarily broad. The Commission believes that the most imminent need for terminal services agreement information pertains to particular MTO discussion agreements whose actions are more likely to affect competition in the terminal services market. The Commission tentatively concludes that it can acquire such agreements under its present authority in § 535.301. If the Commission is going to use such authority, however, the Commission believes that § 535.301(d) should be strengthened by adding a provision requiring exempted agreements to be submitted to the FMC within 15 days of a written request from the Director, Bureau of Trade Analysis. If conditions change, the Commission could revisit the proposal to institute standard Monitoring Report requirements for all MTO conference and discussion agreements, or possibly amend, or revoke, the exemption in § 535.309. The Commission requests comment on this proposal.

    IV. Complete and Definite Agreements in § 535.402, and Activities That May Be Conducted Without Further Filings in § 535.408.

    The Shipping Act requires that a “true copy” of every agreement be filed with the Commission.23 In administering these requirements, the Commission has endeavored to provide parties to agreements with guidance and clarity on what constitutes a “true copy” of an agreement through its regulations in § 535.402, which require that an agreement filed under the Act must be clear and definite in its terms, must embody the complete, present understanding of the parties, and must set forth the specific authorities and conditions under which the parties to the agreement will conduct their operations and regulate the relationships among the agreement members.

    23 46 U.S.C. 40302(a).

    Section 535.408 exempts from the filing requirements certain types of agreements arising from the authority of an existing, effective agreement.24 Specifically, agreements based on the authority of effective agreements are permitted without further filing to the extent that: (1) the effective agreement itself is exempted from filing, pursuant to subpart C of part 535, or (2) it relates to one of several technical or operational matters stemming from the effective agreement's express enabling authority. Such matters include stevedoring, terminal, and related services.25

    24 As discussed above, the Commission may, under 46 U.S.C. 40103, exempt classes of agreements and activities of regulated entities from the requirements of the Shipping Act if it finds that the exemption will not result in a substantial reduction in competition or be detrimental to commerce.

    25 46 CFR 535.408(b)(3).

    A. § 535.402

    In the ANPR, the Commission stated that it was concerned about confusion among regulated entities regarding the requirement that further agreements arising from the authority of a filed agreement must generally be filed with the Commission.26 In order to address this issue, the Commission indicated that it was considering proposing to amend § 535.402 to expressly state that an agreement that arises from the authority of an effective agreement, but whose terms are not fully set forth in the effective agreement to the extent required by the current text of § 535.402, must be filed with the Commission unless exempted under § 535.408.

    26 81 FR at 10194.

    Only the carriers commented on this potential proposal, stating that although they do not believe that revision to the regulation was necessary, they have no objection to the proposal under consideration.27 Accordingly, the Commission is proposing to add a second paragraph to § 535.402 as contemplated in the ANPR.

    27 Carriers at 16.

    B. § 535.408(b)(3)

    The Commission also noted in the ANPR that it was concerned that the filing exemption in § 535.408(b)(3) for further agreements addressing stevedoring, terminal, and related services is unclear and overly broad. The Commission indicated that it was considering proposing to remove the exemption and replace it with a list of more narrowly defined, specific services and requested comment on what specific services might be appropriately included within the revised exemption and how to define those services. The Commission also requested comments on whether the specific examples of stevedoring, terminal, and related services listed in § 535.408(b)(3), i.e., the operation of tonnage centers or other joint container marshaling facilities, continue to be relevant and suitable exempted activities.

    The carriers and several of the groups consisting of MTOs or MTOs and carriers 28 (MTO groups) question the need for any changes to the exemption and assert that, given the few situations in which the scope of the provision had been discussed by agreement parties and Commission staff, the Commission was overstating concerns about the clarity and potential abuse of the provision.29 Those groups also express concern that it would be extremely difficult to make a comprehensive list of all services to exempt from filing, and any list developed now could be obsolete in the future.30 The groups argue that because any agreement related to service omitted from the list would have to be filed with the Commission and subject to the 45-day waiting period (regardless of how minimal the competitive impact or how great the benefit to the public), the proposal under consideration would increase the burdens on both agreement parties and Commission staff, and delay the operational or business requirements of the parties.31

    28 OAKMTOA, WCMTOA, NAWE, PMSA, Port of NY/NJ.

    29 Carriers at 19; WCMTOA/OAKMTOA at 5-6; NAWE at 6; PMSA at 2-3; Port of NY/NJ at 8.

    30 Carriers at 18-19; WCMTOA/OAKMTOA at 6; NAWE at 6-7; PMSA at 3; Port of NY/NJ at 7-8

    31 Carriers at 22-23; WCMTOA/OAKMTOA at 6; NAWE at 7; PMSA at 3; Port of NY/NJ at 7-8.

    In order to avoid these alleged problems, the groups recommend that the Commission retain the existing exemption.32 As an alternative, WCMTOA/OAKMTOA suggest that the Commission consider requiring that agreement parties provide the Commission with confidential notice of further agreements falling under the exemption, allowing the Commission to review those agreements without a “full-blown agreement amendment” process and enabling the Commission to better understand how the exemption is being used and whether further action on the issue is required in the future.33

    32 WCMTOA/OAKMTOA at 6; NAWE at 7; PMSA at 3; Port of NY/NJ at 8.

    33 WCMTOA/OAKMTOA at 7.

    In addition to the points described above, the carriers offer several additional comments not raised by the MTO groups. Specifically, the carriers state that the exemptions in § 535.408(b) represent a delicate and difficult exercise in balancing the Commission's need for information and oversight and one of the Shipping Act's stated purposes, to regulate with a minimum of government intervention and regulatory costs.34 The carriers argue that the concerns voiced by the Commission in the ANPR are inapplicable to operational carrier agreements such as vessel and space charter agreements, which almost always create the need for carriers to come to an understanding about how to deal with terminals and stevedores and, therefore, generally include authority to discuss and agree on these issues.35 The carriers argue that such arrangements are a routine part of such agreements and there is no need to change the existing exemption.36

    34 Carriers at 17.

    35Ibid. at 18.

    36Ibid. at 19.

    In the alternative, the carriers recommend clarifying the current exemption rather than replacing it with a list of specific services.37 With respect to tonnage centers, the carriers assert that the exemption should be retained because a tonnage center is merely an administrative mechanism through which agreement parties carry out existing authorities in the agreement; it neither adds nor detracts from such authority.38

    37Ibid. at 20.

    38Ibid.

    With regard to joint container marshaling facilities, the carriers assert that the exemption should be retained and made part of a new provision exempting from further filing the implementation of authority to jointly procure facilities and services, providing three reasons supporting such an exemption.39 First, the carriers argue that it is unlikely that joint procurement activities could result in an unreasonable increase in transportation cost or unreasonable reduction in transportation service. Rather, they assert that such activities will generally result in a reduction in costs to carriers and more efficient service, thereby lowering costs and improving service for shippers. Second, the carriers state that joint procurement activities do not represent further agreement among the carriers, but an agreement between the carriers and a third party entered into under the authority of a filed agreement. Finally, the carriers argue that joint procurement arrangements, by their nature, are ill-suited to further filing and appropriate for exemption. Specifically, the carriers assert that these are routine, everyday transactions that would be conducted by the individual carriers themselves if not done jointly. In addition, the carriers express concern and confusion over the mechanics of filing such arrangements and the danger that competitively sensitive information would be made public.

    39Ibid. at 20-23.

    The Commission notes that the exemptions in § 535.408(b) were promulgated under the authority in 46 U.S.C. 40103 and were predicated on a finding that the exempted activities would not result in a substantial reduction in competition or be detrimental to commerce.40 Against that backdrop, we first respond to the MTO groups' comments, which are based on the understanding that the exemption in § 535.408(b)(3) applies, and was intended to apply, to MTO agreements. Although, by its plain language, § 535.408(b)(3) does not limit the applicability of the exemptions to any particular type of agreement, the rulemaking history of the provision and the Commission's subsequent statements indicate that the Commission's focus was on activities under ocean common carrier agreements, rather than MTO agreements, when it promulgated § 535.408(b).

    40 2003 Proposed Rule, 68 FR at 67518.

    First, all of the exemptions in § 535.408(b) concern matters that can arise during the implementation of ocean common carrier agreements, and some of these are clearly limited to such agreements (e.g., establishing and jointly publishing tariff rates, rules, and regulations; matters relating to space allocation and slot sales). In addition, the Commission's discussion of the exemptions in the 2003 Proposed Rule and 2004 Final Rule focused solely on ocean common carrier agreements.41 Finally, the scope of § 535.408(b) was clarified by the Commission in the preamble to the 2009 final rule eliminating the general exemption from the 45-day waiting period for marine terminal agreements.42 Specifically, the Ports of Los Angeles and Long Beach expressed concern in their comments to that rulemaking that the exemptions in § 535.408 are specific to VOCCs and do not address marine terminal operators.43 In response, the Commission stated the following:

    41 68 FR at 67517-67519; 69 FR at 64400-64401.

    42 Final Rule, Repeal of Marine Terminal Agreement Exemption, 74 FR 65034 (Dec. 9, 2009).

    43Ibid. at 65034.

    [T]he Commission acknowledges that the exemption under section 535.408 primarily addresses carrier agreements. Section 535.408 states that “technical or operational matters of an agreement's affairs established pursuant to express enabling authority in an agreement are considered part of the effective agreement” and thus exempts certain amendments having technical or operational effects from the Shipping Act's filing requirement. While not part of Docket No. 09-02, the Commission is open to reviewing this latter section to determine if additional flexibility can be provided for amendments addressing technical or operational matters of marine terminal operator agreements.44

    44Ibid. at 65035-67036.

    The MTO groups thus misconstrue the proposal under consideration as the revocation or revision of an exemption that the Commission granted to activities under MTO agreements after determining that such an exemption would not result in a substantial reduction in competition or be detrimental to commerce. As demonstrated by the history described above, no such determination has ever been made by the Commission, and part of the purpose of this rulemaking is to clarify the scope of the exemption as originally intended while also providing interested persons with the opportunity to put forth routine technical and operational matters related to terminal, stevedoring, and related services under MTO agreements that would be appropriate for an exemption.

    The “few situations” in which this exemption has arisen in the context of MTO agreements are thus troubling. They demonstrate that: (1) Contrary to the Commission's original intent, the exemption in § 535.408(b)(3) is worded broadly enough potentially to apply to activities under MTO agreements; and (2) in the context of MTO agreements, the exemption is potentially broad enough to encompass activities that raise competitive concerns (i.e., much more than routine operational or administrative activities).

    Unlike other exemptions in § 535.408(b) that could be read as applying to MTO agreements, but have the same minimal impact on competition and commerce as they do in the ocean common carrier agreement context,45 “stevedoring, terminal and related services” cover a much broader set of activities in the MTO agreement context. In ocean common carrier agreements, these activities generally involve the joint negotiation of services from MTOs and other waterfront entities, some of which, like terminal services agreements, are currently exempt from the filing requirements when they involve a single carrier.46 In contrast, “stevedoring, terminal, and related services” 47 generally represent the primary subject matter of MTO agreements, and § 535.408(b)(3) could be interpreted broadly enough to exempt from further filing, most, if not all, further agreements authorized by a filed agreement, regardless of their competitive impact. The Commission is therefore unable at this time to find that applying such a broad exemption to MTO agreements would not result in a substantial reduction in competition or be detrimental to commerce. The Commission requests comment on this tentative determination and any information that would support the finding required by 46 U.S.C. 40103 with respect to applying the exemption, as written, to MTO agreements.

    45 For example, scheduling agreement meetings. 46 CFR 535.408(b)(4)(i).

    46 46 CFR 535.309.

    47 The Commission's regulations define terminal services checking, dockage, free time, handling, heavy lift, loading and unloading, terminal storage, usage, wharfage, and wharf demurrage. 46 CFR 525.1(19); 535.309.

    For similar reasons, the Commission is tentatively rejecting WCMTOA/OAKMTOA's suggestion that the Commission require further agreements falling under the exemption to be filed confidentially with the Commission rather than subject them to the normal filing requirements. Granting such an exemption would require the same affirmative finding under 46 U.S.C. 40103, and given the potential breadth of further agreements falling under the exemption, and the fact that the Commission would not have the 45-day review period, the benefit of third-party comments, or the opportunity to issue an RFAI if it had concerns with such agreements, the Commission is unable to make such a finding at this time.

    Although the Commission has tentatively determined that the current exemption is not appropriate for MTO agreements, we acknowledge that there may be some further agreements dealing with stevedoring, terminal, or related services that have little to no competitive impact. Accordingly, the Commission requested comment in the ANPR on what specific services might be appropriately included within the revised exemption and how to define those services. Unfortunately, none of the MTO groups responded to this request. In the absence of any recommendations regarding specific MTO agreement activities to include within the revised exemption, the Commission is proposing to amend the language of § 535.408(b)(3) to expressly limit the exemption to ocean common carrier agreements as originally contemplated by the Commission (with some additional revisions discussed below).

    The Commission is, however, renewing its request for comments on specific stevedoring, terminal, or related services that should be exempted from further filing if authorized by an MTO agreement.48 As contemplated in the rulemaking establishing § 535.408(b), these should be routine operational and administrative matters that require day-to-day flexibility and have little to no competitive impact. In addition to describing these services, commenters should provide information sufficient to enable the Commission to determine that exempting them from the further filing requirements would not result in a substantial reduction in competition or be detrimental to commerce.

    48 The commenters' arguments regarding the difficulties of creating and maintaining a list of specific services are not compelling. Should the need arise to amend the list in the future, the Commission can initiate a new rulemaking on its own initiative or in response to a petition for rulemaking filed by an interested party. 46 CFR 502.51.

    With respect to the ocean common carrier agreements, the carriers are generally correct in their assertion that the Commission's concerns with § 535.408(b)(3) relate primarily to MTO agreements rather than operational carrier agreements such as vessel and space charter agreements. As discussed above, stevedoring, terminal, and related services (including the operation of tonnage centers and other joint container marshalling facilities) are generally discrete, ancillary matters in these agreements and do not raise the same competitive concerns that they do in the MTO agreement context. Accordingly, the Commission is proposing to retain the exemption for joint contracting of stevedoring and terminal services by parties to an ocean common carrier agreement 49 and the express exemption for the operation of tonnage centers and other joint container marshaling facilities under those agreements. In addition, the Commission is proposing to tie the definition of terminal services to § 535.309 and to specify that the exemption only applies to those services that are provided to and paid for by the agreement parties.

    49 This proposal is based, in part, on the Commission's tentative determination to retain the exemption for marine terminal services agreements in § 535.309. Should the Commission reconsider this determination, the proposal related to § 535.408(b)(3) may be affected.

    The Commission is also proposing to remove the phrase “or related services” from the exemption. It is unclear what might comprise the universe of such related services (other than the operation of tonnage centers and joint container marshaling services), and it is therefore difficult for the Commission to find that exempting such activities would not result in a substantial reduction in competition or be detrimental to commerce. The Commission invites comment on these revisions and any additional, specific related services for which exemption would be appropriate.

    For similar reasons, the Commission is tentatively rejecting the carriers' request to create a general joint procurement exemption for ocean common carrier agreements, to the extent that their proposal contemplates something beyond the joint procurement activities that would be exempted under the proposed language. Although agreements that involve joint purchasing can often reduce costs and create efficiencies, such agreements also have the potential for anticompetitive outcomes.50 Without knowledge of what upstream markets might be affected by such joint procurement activities, the Commission would have limited ability to determine their competitive impact. Similar to the request noted above with respect to “related services,” however, the Commission requests comment on specific, additional joint procurement activities that may be appropriate for exemption.

    50 By unduly increasing the bargaining power of the parties, in certain circumstances, such agreements potentially could extract prices so low (and/or an over-provision of service) that the sustainability of long-term investment in the affected upstream market(s) is jeopardized.

    V. The Information Form Requirements in Subpart E of Part 535 A. Proposed Changes

    In conjunction with its proposed changes to the agreement definitions and exemptions, the Commission proposes the following changes to the corresponding Information Form requirements. As discussed in its ANPR, the Commission proposes to modify Section I of the Information Form to specify that space charter agreements exempted under the new proposed exemption in § 535.308 would not be subject to these requirements, and to revise or add the proposed modifications to the definitions of agreement authorities listed in Section I.

    In Section II, the Commission proposes to eliminate the Information Form requirements for simple operational agreements. The Commission believes that the present requirements to list port calls and provide a narrative statement of operational changes for such agreements are unnecessary.

    The Commission proposes that Section III be renumbered as Section II and modified to apply to agreements with authority to charter vessel space (unless exempted under § 535.308 or § 535.311), or with authority to discuss or agree on capacity rationalization. The Commission believes that parties to agreements with such authority should provide before and after data on their service strings, vessel deployments, port itinerary, annual capacity, and vessel space allocation for the services pertaining to the agreement. Further, it is proposed that parties to such agreements provide vessel capacity and utilization data for the services pertaining to the agreement for the preceding calendar quarter, as well as a narrative statement discussing any significant operational changes 51 to be implemented under the agreement and the impact of those changes.

    51 The Commission believes that the definition of significant operational changes should be standardized and applied consistently throughout the regulations to mean an increase or decrease in a party's liner service, ports of call, frequency of vessel calls at ports, and/or amount of vessel capacity deployment for a fixed, seasonally planned, or indefinite period of time. The amended definition would exclude incidental or temporary alterations or changes that have little or no operational impact.

    The Commission proposes that Section IV be renumbered as Section III and that the requirements for rate agreements be reduced to data on market share by agreement-wide trade instead of sub-trade, average revenue, vessel capacity and utilization, and a narrative statement on any anticipated or planned significant operational changes and their impact. The Commission believes that market share data derived on the total geographic scope of the agreement, rather than by sub-trade, should be sufficient for its analysis and less burdensome on the parties. Further, the Commission favors eliminating the present requirement for data regarding the revenue and cargo volume of the top ten major moving commodities for reasons explained in the ANPR. In addition, the Commission proposes to eliminate the requirement for data on the number of port calls.

    The Commission proposes that Section V be renumbered as Section IV with no changes to the present requirements for contact information and a signed certification of the Form. Further, it is proposed that the instructions to the Information Form be streamlined by removing many of the same definitions repeated throughout each section of the Form and stating them in paragraphs at the beginning of the Form, with the understanding that they apply to each section. The Commission believes that this proposed modification would improve the clarity and readability of the instructions.

    B. Summary of Comments

    Comments to these proposals were submitted by the carriers and the NCBFAA. The carriers favor the proposed modifications that reduce the reporting requirements. However, consistent with their objections to the proposed change in the definition of capacity rationalization authority, the carriers object to the increase in the reporting requirements for VSA and alliance agreements and urge the Commission to reduce the requirements. Further, the carriers question why parties to rate agreements must continue to provide market share data on their Information Form when it has been eliminated elsewhere, and the Commission can use its own commercial sources of data to determine the market share of the agreement. They request that the requirement for market share be eliminated from the Information Form. Carriers at 23-24.

    The NCBFAA supports the increased reporting for VSA and alliance agreements and encourages the Commission to seek a greater amount of detailed information on the potential costs and service impact of such agreements. They explain that VSA and alliance agreements encourage carriers to deploy increasingly larger vessels through the benefit of sharing the economic risk of such new purchases. They believe that the inadequate infrastructure at U.S. ports in combination with the deployment of these larger vessels has resulted in severe port congestion, extended delays in the delivery of cargo, and added costs to shippers. NCBFAA at 2-3.

    The NCBFAA identified the congestion problems at the Ports of Los Angeles, Long Beach, and New York/New Jersey as particularly severe in the recent past, noting that delays in cargo delivery resulted in significant demurrage and detention charges to shippers. The NCBFAA believes that the deployment of larger vessels through VSAs has exacerbated the problems of port congestion, the inability of the current infrastructure to handle the flow of containers, and the increased costs for participants in the supply chain. They complain that while the use of larger vessels causes more congestion and delays, carriers do not vary free time for vessel size, and merchant haulers grapple to find sufficient trucking to dray double and triple the container volume in the allotted free time. NCBFAA at 3.

    The NCBFAA further questions the purported cost savings associated with using larger vessels, stating that the costs associated with the congestion and infrastructure problems outweigh any savings of such vessels. They explain that the use of larger containerships results in increased equipment costs for MTOs; dredging costs for port authorities; infrastructure improvement costs for governments; and congestion costs for transportation companies, including trucking, barge and rail companies as well as ocean transportation intermediaries. In support of its argument, the NCBFAA cites a report on the impact of large containerships prepared by the Organization for Economic Cooperation and Development (OECD).52 In its report, the OECD determined that cost savings are decreasing as containerships become bigger, and this tendency of decreasing cost savings continues with the introduction of the newest generation of containerships, which it estimates at four to six times smaller than the savings associated with the preceding round of vessel deployments.53 NCBFAA at 4-5.

    52 OECD/ITF, The Impact of Mega-Ships, International Transport Forum (2015), available at http://www.itf-oecd.org/sites/default/files/docs/15cspa_mega-ships.pdf.

    53Ibid, p. 26.

    The NCBFAA advises the Commission to examine whether the carriers' move toward increasingly larger vessels and alliance arrangements would result in an inappropriate transfer of risks and costs to the shipping public. As such, they recommend that the narrative statement of the Information Form requirements for parties to VSAs be expanded to include: (1) Carriers' plans for addressing delays in the loading and discharging of containers on and off vessels at ports; (2) sufficient chassis availability to handle the movement of containers at ports; (3) sufficient drayage availability to handle the movement of containers at ports; (4) carriers' plans for eliminating duplicative container handling operations at ports; (5) projected dwell times; (6) allotted free time for container movements based on vessel size and drayage availability; and (7) unfounded demurrage or detention costs due to delays that are beyond the control of shippers. NCBFAA at 6-7. Further, the NCBFAA recommends that parties to VSA and alliance agreements be required to provide the Commission with their contingency plans for handling cargo when their vessels cannot access ports as scheduled due to congestion. NCBFAA at 8.

    C. Discussion

    The carriers request that the proposed Information Form requirements for VSAs be reduced but they do not provide any specifics or alternative recommendations. The proposed service and capacity reporting requirements for VSA and alliance agreements should provide the Commission with a clearer understanding of any service changes and the impact of those changes in its initial review of the agreement, without having to request additional information. The Commission believes that such service data is prepared and readily available because parties to VSAs would likely examine such data to conduct their own analysis when entering into such agreements. The parties are the source of the most accurate firsthand information. Therefore, such data should not be an unreasonable burden to report, and the Commission is disinclined to reduce these Information Form requirements.

    Regarding the market share requirement for rate agreements, while the Commission can and does conduct its own market analysis, it is important at the initial filing stage of the agreement that the parties present to the Commission their analysis and understanding of the market and the market share of the agreement. The interpretation of the market might vary depending on the authority and geographic scope of the agreement, and the parties' view of the market might differ from the Commission's view. In addition, the Commission is proposing to require only agreement-wide market share and eliminate the requirement of market share by sub-trade, which would significantly reduce the reporting burden on the industry.

    The Commission appreciates all of the concerns expressed in the comments of the NCBFAA regarding the competitive impact of VSA and alliance agreements. The Commission believes that the NCBFAA raises valid concerns on how the size of vessels deployed under these arrangements can impact port and terminal operations and the cost of handling containers within the meaning of unreasonable service decreases and unreasonable cost increases under section 6(g). The Commission will take these concerns into consideration in its review of such agreements. However, as a matter of standard reporting, the Commission does not believe that such an extensive line of inquiry is necessary for reviewing every VSA. The Commission believes that information on terminal and cargo handling matters would be more meaningful in the review of major alliance agreements, and the Commission has formally requested information on such matters in its past review of alliance agreements pursuant to its authority under 46 U.S.C. 40304(d). Therefore, the Commission tentatively declines to adopt the recommendations of the NCBFAA as a standard Information Form reporting requirement, but reserves these recommendations as matters for consideration in the Commission's review of major VSA and alliance agreements that it may seek additional information on through its statutory authority.

    The Commission requests additional comment on the proposed changes to the Information Form requirements.

    VI. Comments in § 535.603, and Requests for Additional Information in § 535.606 A. Requests for Additional Information

    The Shipping Act permits the Commission to request from the person filing the agreement any additional information and documents the Commission considers necessary to make the determinations required by the Act during the 45-day waiting period before an agreement may go into effect.54 In accordance with 46 U.S.C. 40304(d) and the Commission's general rulemaking authority under 46 U.S.C. 305, the Commission has promulgated regulations regarding the issuance of RFAIs at 46 CFR 535.606. The regulations state that the Commission will publish a notice in the Federal Register that it has requested additional information and serve that notice on any commenting parties, but the notice will indicate only that a request was made and will not specify what information is being sought.55 The purpose of this notice is to allow further public comment on the agreement.56

    54 46 U.S.C. 40304(d).

    55 46 CFR 535.606(d).

    56 Final Rule, Rules Governing Agreements by Ocean Common Carriers and Other Persons Subject to the Shipping Act of 1984. 49 FR 45320, 45338 (Nov. 15, 1984).

    In the ANPR, the Commission noted that its general policy is not to disclose questions issued by the Commission in an RFAI and requested comment on the policy and whether it should be modified.57 All of the commenters that discussed the issue supported the current policy of not releasing RFAI questions and urged the Commission not to change it. Several commenters asserted that the policy promotes the frank exchange of questions and responses on issues of concern to the Commission, and that publication of the questions could lead to questions being asked for reasons other than regulatory concerns and could prejudice the parties to an agreement as a result of public reaction to the questions.58 The carriers stated that a RFAI is rooted in large part on confidential information in the possession of the Commission and is a part of the deliberative process, and, just as the Commission does not disclose staff recommendations, it should not disclose the questions that form part of the basis for those recommendations.59

    57 81 FR at 10196.

    58 WCMTOA/OAKMTOA at 7-8; Port of NY/NJ at 8-9.

    59 Carriers at 25-26.

    Given the comments received, the Commission is not proposing any changes to the treatment of RFAI questions.

    B. Third-Party Comments

    The Commission's regulations regarding third-party comments on agreement filings are found at 46 CFR 535.603, which provides that persons may file with the Secretary written comments regarding a filed agreement. Section 535.603 provides that, if requested, comments and any accompanying material will be accorded confidential treatment to the fullest extent permitted by law and that such requests must include a statement of legal basis for confidential treatment. The regulation further provides that when a determination is made to disclose all or a portion of a comment, notwithstanding a request for confidentiality, the party requesting confidentiality will be notified prior to disclosure.

    In the ANPR, the Commission requested comment on its policy with respect to the disclosure of third-party comments. The commenters who discussed the issue universally opined that third-party comments on agreements should be made public unless the submitter asserts that they fall within one of the exemptions from disclosure under FOIA, and the Commission determines that assertion to be valid.60 These commenters asserted that publishing the comments encourages accuracy, affords agreement parties with the opportunity to provide the Commission with their perspective on the issues raised, and promotes dialogue between the agreement parties and the commenters.

    60 WCMTOA/OAKMTOA Comments at 8; Carrier Comments at 26; PNYNJPA Comments at 9.

    During the past several years, there has been some confusion about how the Commission handles third-party comments to agreements and their accessibility by agreement parties and the public, leading the Commission to tentatively determine that § 535.603 does not sufficiently advise commenters and the public about this process. The Commission tentatively concludes, however, that the current process, which permits requests for copies of third-party comments, has the same advantages as those cited by commenters with respect to publishing comments. Accordingly, the Commission is proposing to amend § 535.603 to describe in more detail the Commission's current process for handling third-party comments and requests comment on any modifications that should be considered.

    When the Commission receives a comment on a filed agreement, it is distributed internally to the Commissioners and relevant staff. If the commenter requests confidential treatment, the Secretary will make a prompt determination as to the Commission's ability to protect any comment or portion of a comment from disclosure and inform the submitter. If a member of the public, press, or agreement counsel request a copy of a comment, the Office of the Secretary will provide any comment or part of a comment unless the Secretary has determined that the comment or part of the comment should be afforded confidential treatment.

    Currently, late-filed comments are only accepted by leave of the Commission upon a showing of good cause. In order to more efficiently handle late-filed comments, the Commission is proposing to amend § 501.24 to delegate to the Secretary the authority to determine whether to accept such comments.

    The Commission requests comment on the proposed revisions to §§ 501.24 and 535.603, which reflect the process described above, and any modifications that should be considered to the process.

    VII. Agreement Reporting Requirements in Subpart G of Part 535 A. Background

    Under subpart G of part 535, parties to agreements that contain certain authority are required to file periodic Monitoring Report and/or other prescribed reports. Further, parties to agreements with certain types of authority (e.g., rate authority) are required to provide minutes of their meetings. For reasons identified in its ANPR, the Commission is proposing the following modifications to these reporting requirements.

    There are currently three sections of the Monitoring Report. Sections I and II apply according to the authorities contained in the agreement. Section III applies to all agreements subject to Monitoring Reports and requires contact information and a signed certification of the Report. The Commission proposes that Section I be modified to apply to agreements between or among three or more ocean common carriers that contain the authority to discuss or agree on capacity rationalization, under the new proposed definition of this authority in § 535.104(e). Agreements subject to reporting under Section I would include vessel sharing and alliance agreements among three or more carriers regardless of whether such agreements contain exclusivity clauses.

    There, however, may be agreements below the threshold of three or more members agreeing on the supply of capacity in a trade or service that the Commission may need to monitor. In such cases, the Commission may decide to prescribe reporting requirements pursuant to § 535.702(d). In this regard, the Commission proposes to revise § 535.702(d) to clarify that it applies to any filed agreements, not just to those agreements subject to the Monitoring Report requirements. Further, the Commission proposes to move this authority from § 535.702(d) under the Monitoring Reports section to § 535.701(c) under the general requirements section for reporting requirements in subpart G of part 535. Sections 535.701(c)-(j) of the current regulations would be redesignated sequentially.

    In terms of requirements, the Commission proposes to require that parties to capacity rationalization agreements subject to Section I submit quarterly Reports with data on their vessel capacity and utilization separately showing each month of the quarter for the liner services pertaining to the agreement. The provision for advance notice of significant reductions in capacity would be retained along with the narrative statement on any other significant operational changes implemented during the quarter.

    Section II of the Monitoring Report applies to carrier agreements containing rate authority with a market share of 35 percent or more. The Commission proposes that the requirements for these agreements be reduced by eliminating the market share, commodity components, and the narrative statement on significant operational changes.

    The market share requirement delays the Report because most of the carriers supply this information using commercial data sources, which causes a lag in the Report of 75 days after the end of the quarter. 46 CFR 535.701(f). The Commission subscribes to commercial sources of data and can run periodic data reports as needed. Without the market share requirement, the Commission proposes that the filing deadline for the Report be shortened from 75 to 45 days after the end of each quarter, which would provide more timely data.

    Further, the Commission proposes that the reporting requirement for data by commodity be eliminated for the Monitoring Report. However, when essential to monitoring an agreement, the Commission could prescribe specific commodity data reporting pursuant to its authority.

    The Commission is also proposing that parties to rate agreements no longer be required to report on the significant operational changes in their services. The Commission believes that reporting this information under VSA and alliance agreements should provide a sufficient understanding of significant operational changes in the U.S. trade lanes. When needed, the Commission could request specific operational information from the parties.

    With the elimination of these requirements, it is proposed that parties to rate agreements with a market share of 35 percent or more submit quarterly Monitoring Reports with data on their average revenue, vessel capacity, and utilization for each month of the quarter for the liner services operated by the parties within the geographic scope of the agreement.

    As with the Information Form, it is proposed that the Monitoring Report instructions be streamlined by removing definitions repeated within each section and stating them in paragraphs at the beginning of the Report with the understanding that they apply to each section.

    Section 535.704(b) defines a “meeting” between the parties to an agreement for the purpose of the filing of meeting minutes with the Commission. The Commission proposes that the definition be modified to clarify that the discussions of parties using different forms of technology (e.g., telephone, electronic device, electronic mail, file transfer protocol, electronic or video chat, video conference) still constitute discussions for the purpose of filing minutes.

    B. Summary of Comments

    The carriers were the only interested parties to submit comments on the proposed changes to the Monitoring Report requirements. The carriers support the changes to reduce the reporting burden but again raise objections to the increase in reporting in connection with the proposed change in the definition of capacity rationalization as it applies to VSA and alliance agreements. They urge the Commission to reduce the reporting burden for these agreements. Further, the carriers generally support the reduction in the filing deadline from 75 to 45 days with the understanding that occasional and reasonable requests for extensions of the deadline would be available as needed. Carriers at 23-24.

    C. Discussion

    The carriers urge that the Commission reduce the reporting burden for agreements subject to the proposed definition of capacity rationalization, but they provide no specifics or alternative recommendations. As explained above in the section discussing the Information Form, parties to VSA and alliance agreements closely track their service and capacity, and such data is readily available to the parties. The Commission does not believe that the reporting requirements pose an undue regulatory burden. The data is essential for the Commission to monitor the actions of the agreement parties and their impact on the supply of capacity in the U.S. liner trades, and the parties are the best source of information. Further, the Commission proposes to limit the application of the requirements to capacity rationalization agreements between three or more carriers, and eliminate the reporting of information on service changes for parties to rate agreements. Where agreement parties believe reporting is unnecessary or overly burdensome, they may apply and the Commission shall consider an application for waiver of some or all of the Monitoring Report requirements in accordance with § 535.705. Such regulatory relief includes extensions of time to file the reports, which the Commission may grant on a case-by-case basis for good cause.

    VIII. Non-Substantive Modifications To Update and Clarify the Regulations in Parts 501 and 535 A. Background

    As explained in its ANPR, to update and clarify the regulations, the Commission proposes that:

    1. The CFR citation for the delegated authority of the Director of the Bureau of Trade Analysis to prescribe reporting requirements in § 501.27(o) be revised from § 535.702(d) to § 535.701(c) to reflect the proposed change to these regulations;

    2. The delegated authority of the Director of the Bureau of Trade Analysis in § 501.27(p) to require the reporting of commodity data on a sub-trade basis from agreement parties be removed, in conjunction with the proposed changes to the reporting requirements;

    3. The definition of sailing agreement in § 535.104(bb) 61 be revised to mean an agreement by or among ocean common carriers to coordinate their respective sailing or service schedules of ports, and/or the frequency of vessel calls at ports. The Commission believes that the present definition is more broadly descriptive of the authority of carriers in a VSA where the parties would conceivably rationalize capacity;

    61 Section 535.104(bb) presently defines a sailing agreement as an agreement between ocean common carriers to provide service by establishing a schedule of ports that each carrier will serve, the frequency of each carrier's calls at those ports, and/or the size and capacity of the vessels to be deployed by the parties. The term does not include joint service agreements, or capacity rationalization agreements.

    4. The regulations in § 535.301(b) on the optional filing of exempt agreements be revised to add that such filings are also exempt from the 45-day waiting period requirement and may become effective upon filing with the FMC;

    5. The CFR reference on the application for exemption procedures cited in § 535.301(c) be corrected and revised from § 502.67 to § 502.74;

    6. Per the carriers' request in comments submitted to the Commission's retrospective review plan of its regulations, the regulations in § 535.302(a) on non-substantive modifications to effective agreements be amended to add agreement modifications in the number or size of vessels within the range of capacity specified in the agreement pursuant to the express enabling authority for operational matters identified in § 535.408(b)(5)(ii). The Commission expects that this revision to § 535.302(a) would encourage carriers to amend their agreements accordingly with more accurate information, which would improve the clarity of the agreement;

    7. The regulations in § 535.302(d) be revised to specify that agreement parties may seek assistance from the Director of the Bureau of Trade Analysis on whether an agreement modification would qualify for an exemption based on the types of exemptions strictly listed and identified in § 535.302, as intended, and not on a general basis as parties have mistakenly interpreted the regulations;

    8. The regulations in § 535.404(b) be revised to require that where parties reference port ranges or areas in the geographic scope of their agreement, the parties identify the countries included in such ranges or areas so that the Commission can accurately evaluate the agreement;

    9. The formatting requirements for the filing of agreement modifications in § 535.406 be revised to apply to all agreements identified in § 535.201 and subject to the filing regulations of part 535, except assessment agreements; 62

    62 Section 535.104(d) defines assessment agreements to mean an agreement, whether part of a collective bargaining agreement or negotiated separately, that provides for collectively bargained fringe benefit obligations on other than a uniform man-hour basis regardless of the cargo handled or type of vessel or equipment utilized. Section 535.401(e) requires that assessment agreements be filed and effective upon filing with the FMC.

    10. In § 535.501(b) on the electronic submission of the Information Form, the reference to diskette or CD-ROM be removed; 63

    63 Subsequent to the ANPR, the Commission implemented its automated agreement filing system by direct final rule. 81 FR 24703 (Apr. 27, 2016).

    11. The phrase “whether on a binding basis under a common tariff or a non-binding basis” in § 535.502(b)(1) be removed from the description of rate authority;

    12. In § 535.502(c), the expansion of membership, in addition to the expansion of geographic scope as presently provided, be a modification that requires an Information Form for agreements with any authority identified in § 535.502(b), i.e., rate, pooling, capacity, or service contracting;

    13. Section 535.605(c) be added to indicate that a fee specified in § 535.401(h) shall be assessed to process a request for expedited review of a filed agreement;

    14. In § 535.701(e) (as redesignated from the current § 535.701(d)) on the electronic submission of Monitoring Reports, the reference to diskette or CD-ROM be removed and replaced with “as provided in § 535.701(f) of this part;”

    15. The regulations in § 535.701(f) (as redesignated from the current § 535.701(e)) be revised to state simply that the submission of reports and meeting minutes pertaining to agreements that are required by these regulations may be filed by direct secure electronic transmission in lieu of hard copy, and that detailed information on electronic transmission is available from the Commission's Bureau of Trade Analysis;

    16. The phrase “whether on a binding basis under a common tariff or a non-binding basis” in § 535.702(a)(2)(i) be removed from the description of rate authority;

    17. The regulations in § 535.702(b) be revised to indicate that rather than using market share data filed by the parties to agreements, the Bureau of Trade Analysis would notify the parties of any changes in their reporting requirements; 64

    64 As discussed, only parties to rate agreements with a combined market share of 35 percent or more are required to file Monitoring Reports. 46 CFR 535.702(a)(2). If the market share of a rate agreement drops below 35 percent, the Bureau would notify the parties that the agreement is no longer subject to the Monitoring Report regulations.

    18. In § 535.703 on the Monitoring Report Form, the reference to part 2(C) of section I of the Monitoring Report be revised to part 2(B) of section I in conjunction with the proposed modifications to the report; and

    19. The regulations in § 535.703(d) on the commodity data requirements of the Monitoring Report be removed.

    B. Summary of Comments and Discussion

    The carriers were the only interested parties to submit comments on the proposed changes in the regulations. The carriers support the proposal in § 535.302(a) on non-substantive modifications to effective agreements to add agreement modifications in the number or size of vessels within the range specified in the agreement, with the understanding that such amendments to agreements are not required. Carriers at 27. This is the understanding of the Commission because such changes in the number or size of vessels [within the range stated in the agreement] are activities that may be conducted without further filing under the regulation in § 535.408(b)(5)(ii).

    The carriers support the proposal in § 535.404(b) to require that agreement parties identify the countries included in a port range or area of the geographic scope of the agreement, provided that the parties need not call directly at each specified country and may change direct calls without filing an amendment to the agreement. The carriers cite an example for the East Coast of South America that includes Brazil, Uruguay, and Argentina. Under this scope, the agreement parties may not directly call in Uruguay but serve the country via feeder from the other ports of call, or may change their services to begin directly calling in Uruguay and serve the other countries via feeder. Carriers at 27.

    The Commission believes that so long as the countries are within the range of service whether by direct calls or transshipment via feeder service, there would not be a need to file an amendment to the agreement. If the VSA or alliance agreement is subject to the proposed Monitoring Report requirements, the change in the ports of call would be reported in the parties' quarterly report. However, changes that would completely discontinue service to a country or add new countries would require the filing of an amendment to the geographic scope of the agreement.

    On the proposed change to § 535.502(c) to add the expansion of membership as an agreement modification that would require an Information Form, the carriers find it acceptable if clarified that this requirement applies only to agreements that are subject to the Information Form in the first instance, and that only the new member(s) be required to submit the Information Form data. Carriers at 27-28. It is the Commission's understanding that this proposal would only apply to agreements subject to the Information Form requirements because § 535.502(c) states that it pertains to agreements containing any authority identified in § 535.502(b), which lists the types of rate and capacity authorities contained in agreements that would be required to file an Information Form in the first instance. The Commission believes that limiting the amount of Information Form data to only the new members may be sufficient to assess the impact of the agreement modification. The Commission will consider the carriers' proposal and invites public comments on it. In some cases, however, limiting the Information Form data to only new members may require the Commission to seek additional information to fully understand the impact of the agreement modification within the context of the entire membership and scope of the agreement.

    IX. Regulatory Analyses and Notices A. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in proposed rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11.

    The information collection requirements in Part 535-Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984, are currently authorized under OMB Control Number 3072-0045. In compliance with the PRA, the Commission has submitted the proposed revisions to the information collection contained in this proposed rule to the Office of Management and Budget (OMB).

    In terms of the estimated public burden of collection, the proposed rule would exempt certain space charter agreements from the 45-day waiting period and Information Form requirements, which amounted 39 initial agreement filings in fiscal year 2015. It proposes to adjust the market share threshold for the waiting period exemption in § 535.311 to 35 percent or less. It would increase the number of capacity rationalization agreements required to submit Information Forms, which amounted to nine agreements in fiscal year 2015. However, it would eliminate the Information Form data requirements for basic operational agreements and significantly reduce the data requirements for carrier agreements with rate authority. There were no new carrier rate agreements filed in the past fiscal year. Further, the proposed rule would require that new members joining existing capacity rationalization or rate agreements provide their Information Form data with the agreement modification. There were two such agreement modifications for new members in fiscal year 2015.

    For Monitoring Reports, the proposed rule would require that parties to capacity rationalization agreements with three or more members submit quarterly reports, which at present equates to 22 effective agreements. The rule would also significantly reduce the Monitoring Report data requirements for parties to carrier agreements with rate authority, and at present, there are 10 carrier rate agreements that submit Monitoring Reports. Further, for the filing of meeting minutes with the FMC, the rule proposes to clarify the definition of meeting to include discussions between parties conducted by electronic mail, file transfer protocol, electronic or video chat, and video conference, which is estimated to increase the number of annual minute filings by 20 percent to 942 from 785 in fiscal year 2015. With these proposed reporting changes, the total estimated annual public burden of collection would be 12,027 hours, which would be 1,602 hours, or 12 percent, less than the current annual burden of 13,629 hours, which was last reviewed and approved by OMB in September 2013. Specifically, the reduction in the collection burden primarily reflects the proposed changes associated with the Information Form and Monitoring Report requirements. As noted, the collection burden for carrier parties to rate agreements would be reduced. The collection burden for carrier parties to capacity agreements would increase because of the increase in the number of agreements subject to the reporting requirements.

    Comments are invited on:

    • 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;

    • Whether the Commission's estimate for the burden of the information collection is accurate;

    • Ways to enhance the quality, utility, and clarity of the information to be collected;

    • Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

    Please submit any comments, identified by the docket number in the heading of this document, by any of the methods described in the ADDRESSES section of this document.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, provides that whenever an agency is required to publish a notice of proposed rulemaking under the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the impact of the proposed rule on small entities, unless the agency head determines that the rule, if promulgated, will not have a significant impact on a substantial number of small entities. 5 U.S.C. 603, 605. The Chairman of the Federal Maritime Commission certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The proposed rule would revise the filing requirements for agreements by or among vessel-operating common carriers (VOCCs) and/or marine terminal operators (MTOs). The Commission has previously determined that VOCCs and MTOs do not qualify as small entities because the number of employees and/or gross receipts of these regulated businesses typically exceed the thresholds set under the guidelines of the Small Business Administration.65

    65 See FMC Policy and Procedures Regarding Proper Considerations of Small Entities in Rulemakings 4 (Feb. 7, 2003), from the Web site of the FMC at http://www.fmc.gov/assets/1/Page/SBREFA_Guidelines_2003.pdf.

    List of Subjects 46 CFR Part 501

    Authority delegations, Organization and functions, Seals and insignia.

    46 CFR Part 535

    Administrative practice and procedure, Maritime carriers, Reporting and recordkeeping requirements.

    For the reasons stated in the supplementary information, the Federal Maritime Commission proposes to amend parts 501 and 535 of Title 46 of Code of Federal Regulations as follows:

    PART 501—THE FEDERAL MARITIME COMMISSION—GENERAL 1. The authority citation for part 501 continues to read as: Authority:

    5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 3721; 41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 U.S.C. 301-307, 40101-41309, 42101-42109, 44101-44106; Pub. L. 89-56, 70 Stat. 195; 5 CFR part 2638; Pub. L. 104-320, 110 Stat. 3870.

    2. Amend § 501.24 by adding paragraph (i) to read as follows:
    § 501.24 Delegation to the Secretary

    (i) Authority to accept late-filed comments to agreement filings submitted under § 535.603 of this title.

    3. Amend § 501.27 by revising paragraph (o) and removing paragraph (p) to read as follows:
    § 501.27 Delegation to and redelegation by the Director, Bureau of Trade Analysis.

    (o) Authority to prescribe periodic reporting requirements for, or require Monitoring Reports from, parties to agreements under § 535.701(c) and § 535.702(c) of this chapter.

    (p) [Removed]

    PART 535—OCEAN COMMON CARRIER AND MARINE TERMINAL OPERATOR AGREEMENTS SUBJECT TO THE SHIPPING ACT OF 1984 4. The authority citation for part 535 continues to read as: Authority:

    5 U.S.C. 553; 46 U.S.C. 305, 40101-40104, 40301-40307, 40501-40503, 40901-40904, 41101-41109, 41301-41302, and 41305-41307.

    5. Amend § 535.104 by revising paragraphs (e) and (bb) to read as follows:
    § 535.104 Definitions.

    (e) Capacity rationalization means the authority in an agreement by or among ocean common carriers to discuss, or agree on, the amount of vessel capacity supplied by the parties in any service or trade within the geographic scope of the agreement.

    (bb) Sailing agreement means an agreement by or among ocean common carriers to coordinate their respective sailing or service schedules of ports, and/or the frequency of vessel calls at ports. The term does not include joint service agreements, or capacity rationalization agreements.

    6. Amend § 535.301 by revising paragraphs (b) through (d) to read as follows:
    § 535.301 Exemption procedures.

    (b) Optional filing. Notwithstanding any exemption from filing, or other requirements of the Act and this part, any party to an exempt agreement may file such an agreement with the Commission. An agreement that is exempt from the filing requirements of the Act and this part and is optionally filed with the Commission is exempt from the waiting period requirements of the Act and this part. The filing fees for the optional filing of exempt agreements are provided in § 535.401(g).

    (c) Application for exemption. Applications for exemptions must conform to the general filing requirements for exemptions set forth in § 502.74 of this title.

    (d) Retention of agreements by parties and submission to the Commission. Parties to any agreement that has been exempted from the filing requirements of the Act and this part by the Commission pursuant to section 16 of the Act (46 U.S.C. 40103) must:

    (1) Retain the agreement for the term of the agreement and for a period of three years after its termination; and

    (2) Upon written request from the Director, Bureau of Trade Analysis, must submit a true and complete copy of the agreement to the Bureau of Trade Analysis within 15 days of the request.

    7. Amend § 535.302 by revising paragraph (a)(3), adding paragraph (a)(4), and revising paragraph (d) to read as follows:
    § 535.302 Exemptions for certain modifications of effective agreements.

    (a) * * *

    (3) Reflects changes in the titles of persons or committees designated therein or transfers the functions of such persons or committees to other designated persons or committees or which merely establishes a committee; or

    (4) Reflects changes in the number or size of vessels within the range of capacity specified in the agreement pursuant to the express enabling authority for operational matters identified in § 535.408(b)(5)(ii).

    (d) Parties to agreements may seek a determination from the Director of the Bureau of Trade Analysis on whether a particular modification is exempt as a change identified in paragraphs (a) or (b) of this section.

    8. Add § 535.308 to subpart C to read as follows:
    § 535.308 Space charter agreements—exemption.

    (a) An ocean common carrier agreement is exempted from the waiting period in § 535.604 and becomes effective upon filing if the agreement contains non-exclusive authority to charter or exchange vessel space between two individual carriers and does not contain any authorities identified in § 535.502(b). The term non-exclusive authority means authority that contains no provisions that place conditions or restrictions on the parties' agreement participation or use or offering of competing services.

    (b) The filing fee for exempted space charter agreements is provided in § 535.401(g).

    9. Amend § 535.311 by revising paragraph (a) to read as follows:
    § 535.311 Low market share agreements—exemption.

    (a) Low market share agreement means any ocean common carrier agreement which contains none of the authorities identified in § 535.502(b) and for which the combined market share, based on cargo volume, of the parties in any of the agreement's sub-trades is equal to or less than 35 percent.

    10. Revise § 535.402 to read as follows:
    § 535.402 Complete and definite agreements

    (a) An agreement filed under the Act must be clear and definite in its terms, must embody the complete, present understanding of the parties, and must set forth the specific authorities and conditions under which the parties to the agreement will conduct their operations and regulate the relationships among the agreement members, unless those details are matters specifically enumerated as exempt from the filing requirements of this part.

    (b) An agreement that arises from the authority of an effective agreement, but whose terms are not fully set forth in the effective agreement to the extent required by paragraph (a) of this section, must be filed with the Commission in accordance with the requirements of this subpart unless exempted under § 535.408.

    11. Amend § 535.404 by revising paragraph (b) to read as follows:
    § 535.404 Agreement provisions.

    (b) State the ports or port ranges to which the agreement applies as well as any inland points or areas to which it also applies. In referencing geographic port ranges or areas in an agreement, state the name of each country included in such ranges or areas; and

    12. Amend § 535.406 by revising the introductory text to read as follows:
    § 535.406 Modifications of agreements.

    The requirements of this section apply to all agreements identified in § 535.201 and subject to the filing regulations of this part, except assessment agreements.

    13. Amend § 535.408 by revising paragraph (b)(3) to read as follows:
    § 535.408 Activities that may be conducted without further filings.

    (b) * * *

    (3) The following matters related to stevedoring, terminal, and related services: (i) Joint contracting for marine terminal services (as that term is defined in § 535.309) or stevedoring services by parties to an ocean common carrier agreement if such services are provided to and paid for by the agreement parties;

    (ii) Operation of tonnage centers or other joint container marshalling facilities by parties to an ocean common carrier agreement.

    14. Amend § 535.501 by revising paragraph (b) to read as:
    § 535.501 General requirements.

    (b) Parties to an agreement subject to this subpart shall complete and submit an original and five copies of the Information Form at the time when the agreement is filed. A copy of the Form in Microsoft Word and Excel format may be downloaded from the Commission's home page at http://www.fmc.gov, or a paper copy of the Form may be obtained from the Bureau of Trade Analysis. In lieu of submitting paper copies, parties may complete and submit their Information Form in the Commission's prescribed format electronically using the automated agreement filing system in accordance with the instructions provided on the Commission's home page.

    15. Amend § 535.502 by revising paragraphs (a) through (c) to read as follows:
    § 535.502 Agreements subject to the Information Form requirements.

    (a) All agreements identified in § 535.201(a), except for exempt agreements identified in § 535.308 and § 535.311;

    (b) Modifications to an agreement that add any of the following authorities:

    (1) The discussion of, or agreement on, any kind of rate or charge;

    (2) The discussion of, or agreement on, any service contract matter;

    (3) The establishment of a joint service;

    (4) The pooling or division of cargo traffic, earnings, or revenues and/or losses; or

    (5) The discussion of, or agreement on, capacity rationalization.

    (c) Modifications that expand the geographic scope or membership of an agreement containing any authority identified in paragraph (b) of this section. Modifications to expand the membership of an agreement may limit the Information Form requirements to include only the new members that are the subject of the modification.

    16. Revise § 535.503 to read as follows:
    § 535.503 Information Form.

    (a) The Information Form, with instructions, for agreements and modifications to agreements subject to this subpart, are set forth in sections I through IV of appendix A of this part. The instructions should be read in conjunction with the Act and this part.

    (b) The Information Form must be completed as follows:

    (1) Sections I and IV must be completed by parties to all agreements identified in § 535.502;

    (2) Section II must be completed by parties to agreements identified in § 535.502 that contain any of the following authorities:

    (i) The charter or use of vessel space in exchange for compensation or services; or

    (ii) The discussion of, or agreement on, capacity rationalization.

    (3) Section III must be completed by parties to agreements identified in § 535.502 that contain any of the following authorities:

    (i) The discussion of, or agreement on, any kind of rate or charge;

    (ii) The discussion of, or agreement on, any service contract matter;

    (iii) The establishment of a joint service; or

    (iv) The pooling or division of cargo traffic, earnings, or revenues and/or losses.

    17. Revise § 535.603 to read as follows:
    § 535.603 Comment.

    (a) General. Persons may file with the Secretary written comments regarding a filed agreement. Commenters may submit the comment by email to [email protected] or deliver to Secretary, Federal Maritime Commission, 800 N. Capitol St. NW., Washington, DC 20573-0001 within the time limit provided in the Federal Register notice. Late-filed comments will be received only by leave of the Secretary and only upon a showing of good cause.

    (b) Confidential Information. Comments and any accompanying material will be accorded confidential treatment to the fullest extent permitted by law. Commenters seeking confidential treatment must mark the comments (or relevant portions thereof) as confidential and must submit, along with their comments, a statement of legal basis for confidential treatment including the citation of appropriate statutory authority (e.g., Freedom of Information Act exemption). The Secretary will evaluate the basis of the request for confidential treatment and inform the commenter as to the Commission's ability to protect the comment from disclosure.

    (c) Requests for Comments. (1) Any member of the public may request a copy of a comment to a filed agreement from the Secretary.

    (2) The Secretary will provide to the requester any comment or portion of a comment that is not determined to be confidential.

    (d) The filing of a comment does not entitle a person to:

    (1) A reply to the comment by the Commission;

    (2) The institution of any Commission or court proceeding;

    (3) Discussion of the comment in any Commission or court proceeding concerning the filed agreement; or

    (4) Participation in any proceeding that may be instituted.

    18. Amend § 535.605 by adding paragraph (c) to read as follows:
    § 535.605 Requests for expedited review.

    (c) A fee to process the request for expedited review of a filed agreement will be assessed as specified in § 535.401(h).

    19. Amend § 535.701 by: A. Redesignating paragraphs (c) through (j) as paragraphs (d) through (k), respectively; B. Adding a new paragraph (c); C. Revising newly redesignated paragraphs (e), (f), and (g) to read as follows:
    § 535.701 General requirements.

    (c) The Commission may prescribe, on an agreement-by-agreement basis, periodic reporting requirements for parties to any agreement identified in § 535.201 and subject to the filing requirements of this part but not identified in § 535.702(a) as subject to the Monitoring Report requirements. The Commission may also prescribe, on an agreement-by-agreement basis, periodic reporting requirements in addition to or in lieu of the Monitoring Report requirements for parties to any agreement identified in § 535.702(a) of this part.

    (e) Monitoring Reports and minutes required to be filed by this subpart should be submitted to: Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-0001. A copy of the Monitoring Report form in Microsoft Word and Excel format may be downloaded from the Commission's home page at http://www.fmc.gov, or a paper copy may be obtained from the Bureau of Trade Analysis. In lieu of submitting paper copies, parties may complete and submit their Monitoring Report in the Commission's prescribed format electronically as provided in paragraph (f) of this section.

    (f) Reports and minutes required to be filed by this subpart may be filed by direct secure electronic transmission in lieu of hard copy. Detailed information on electronic transmission is available from the Commission's Bureau of Trade Analysis.

    (g) Time for filing. Except as otherwise instructed, Monitoring Reports shall be filed within 45 days of the end of each calendar quarter. Minutes of meetings shall be filed within 21 days after the meeting. Other documents shall be filed within 15 days of the receipt of a request for documents.

    20. Amend § 535.702 by revising paragraphs (a) and (b) and removing paragraph (d), to read as follows:
    § 535.702 Agreements subject to Monitoring Report and other reporting requirements.

    (a) Agreements subject to the Monitoring Report requirements of this subpart are:

    (1) An agreement between or among three or more ocean common carriers that contains the authority to discuss or agree on capacity rationalization as defined in § 535.104(e); or

    (2) Where the parties to an agreement hold a combined market share, based on cargo volume, of 35 percent or more in the entire geographic scope of the agreement and the agreement contains any of the following authorities:

    (i) The discussion of, or agreement on, any kind of rate or charge;

    (ii) The discussion of, or agreement on, any service contract matter;

    (iii) The establishment of a joint service; or

    (iv) The pooling or division of cargo traffic, earnings, or revenues and/or losses.

    (b) The determination of an agreement's reporting obligation under § 535.702(a)(2) in the first instance shall be based on the market share data reported on the agreement's Information Form pursuant to § 535.503. Thereafter, the Bureau of Trade Analysis will notify the agreement parties of any change in their reporting requirements.

    (d) [Removed]

    21. Amend § 535.703 by revising paragraph (c) and removing paragraph (d) to read as:
    § 535.703 Monitoring Report form.

    (c) In accordance with the requirements and instructions in appendix B of this part, parties to an agreement subject to part 2(B) of Section I of the Monitoring Report shall submit a narrative statement on any significant reductions in vessel capacity that the parties will implement under the agreement. The term “significant reduction” is defined in appendix B. The narrative statement shall be submitted to the Director, Bureau of Trade Analysis, no later than 15 days after a significant reduction in vessel capacity has been agreed upon by the parties but prior to the implementation of the actual reduction under the agreement.

    (d) [Removed]

    22. Amend § 535.704 by revising the last sentence of paragraph (b) to read as follows:
    § 535.704 Filing of minutes.

    (b) * * * Discussions conducted by telephone, electronic device, electronic mail, file transfer protocol, electronic or video chat, video conference, or other means are included.

    23. Revise Appendix A to part 535 to read as follows: Appendix A to Part 535—Information Form and Information Form Instructions

    1. All agreements and modifications to agreements between or among ocean common carriers identified in 46 CFR 535.502 must be accompanied by a completed Information Form to the full extent required in sections I through IV of this Form. Sections I and IV must be completed by all such agreements. Sections II and III must be completed in accordance with the authority contained in each agreement. As applicable, complete each section of this Form in accordance with the specified format provided in FMC Form-150.

    2. Where an agreement containing multiple authorities is subject to duplicate reporting requirements in the various sections of this Form, the parties may provide only one response so long as the reporting requirements within each section are fully addressed. The Information Form specifies the data and information which must be reported for each section and the format in which it must be provided. If a party to an agreement is unable to supply a complete response to any item of this Form, that party shall provide either estimated data (with an explanation of why precise data are not available) or a detailed statement of reasons for noncompliance and the efforts made to obtain the required information. For purposes of this Form, if one of the agreement signatories is a joint service operating under an effective agreement that signatory shall respond to the Form as a single agreement party.

    3. For clarification of the agreement terminology used in this Form, the parties may refer to the definitions provided in 46 CFR 535.104. In addition, the following definitions shall apply for purposes of this Form: Liner movement means the carriage of liner cargo; liner cargo means cargo carried on liner vessels in a liner service; liner operator means a vessel-operating common carrier engaged in liner service; liner vessel means a vessel used in a liner service; liner service means a definite, advertised schedule of sailings at regular intervals; and TEU means a unit of measurement equivalent to one 20-foot shipping container.

    4. When 50 percent or more of the total liner cargo carried by all of the parties in the geographic scope of the agreement was containerized, the required data for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all of the parties in the geographic scope of the agreement was non-containerized, the required data for each party shall be reported in non-containerized units of measurement. The unit of measurement for the non-containerized data must be specified clearly and applied consistently.

    5. Where the geographic scope of the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound data shall always be stated separately.

    6. For purposes of this Form, the term vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of the liner services pertaining to the agreement or operated by the parties to the agreement.

    7. For purposes of this Form, the term a significant operational change means an increase or decrease in a party's liner service, ports of call, frequency of vessel calls at ports, and/or amount of vessel capacity deployment for a fixed, seasonally planned, or indefinite period of time. It excludes incidental or temporary alterations or changes that have little or no operational impact. If no significant operational change is anticipated or planned to be implemented or occur after the agreement is scheduled to become effective, it shall be noted with the term “none” in response.

    8. When used in this Form, the terms “entire geographic scope of the agreement” or “agreement-wide” refer to the combined U.S. inbound trade and/or the combined U.S. outbound trade as such trades apply to the geographic scope of the agreement, as opposed to the term “sub-trade,” which is defined for reporting purposes as the scope of all liner movements between each U.S. port range and each foreign country within the scope of the agreement. U.S. port ranges are defined as: (a) The Atlantic and Gulf, which includes ports along the eastern seaboard and the Gulf of Mexico from the northern boundary of Maine to Brownsville, Texas, all ports bordering upon the Great Lakes and their connecting waterways, all ports in the State of New York on the St. Lawrence River, and all ports in Puerto Rico and the U.S. Virgin Islands; and (b) the Pacific, which includes all ports in the States of Alaska, Hawaii, California, Oregon, and Washington; and all ports in Guam, American Samoa, Northern Marianas, Johnston Island, Midway Island, and Wake Island.

    Section I

    Section I applies to all agreements identified in 46 CFR 535.502. Parties to such agreements must complete parts 1 through 4 of this section. The authorities listed in part 4 of this section do not necessarily include all of the authorities that must be set forth in an agreement filed under the Act. The specific authorities between the parties to an agreement, however, must be set forth, clearly and completely, in a filed agreement in accordance with 46 CFR 535.402.

    Part 1

    State the full name of the agreement.

    Part 2

    Provide a narrative statement describing the specific purpose(s) of the agreement pertaining to the parties' business activities as ocean common carriers in the foreign commerce of the United States, and the commercial or other relevant circumstances within the geographic scope of the agreement that led the parties to enter into the agreement.

    Part 3

    List all effective agreements that cover all or part of the geographic scope of this agreement, and whose parties include one or more of the parties to this agreement.

    Part 4(A)

    Identify whether the agreement authorizes the parties to discuss, or agree on, any kind of rate or charge

    Part 4(B)

    Identify whether the agreement authorizes the parties to establish a joint service.

    Part 4(C)

    Identify whether the agreement authorizes the parties to pool cargo traffic or revenues.

    Part 4(D)

    Identify whether the agreement authorizes the parties to discuss, or agree on, any service contract matter.

    Part 4(E)

    Identify whether the agreement authorizes the parties to discuss, or agree on, their respective sailing or service schedules of ports, and/or the frequency of vessel calls at ports.

    Part 4(F)

    Identify whether the agreement authorizes the parties to charter or use vessel space in exchange for compensation or services.

    Part 4(G)

    Identify whether the agreement authorizes the parties to discuss or agree on capacity rationalization as defined in 46 CFR 535.104(e).

    Part 4(H)

    Identify whether the agreement contains provisions that place conditions or restrictions on the parties' agreement participation, and/or use or offering of competing services.

    Section II

    Section II applies to agreements identified in 46 CFR 535.502 that contain any of the following authorities: (a) The charter or use of vessel space in exchange for compensation or services; (b) the discussion of, or agreement on, capacity rationalization as defined in 46 CFR 535.104(e). Parties to agreements identified in this section must complete the following parts:

    Part 1(A)

    For the period prior to when the proposed agreement would become effective, for the liner services pertaining to the agreement and for each party, provide: (a) The name of each service; (b) the name of the carrier(s) directly deploying vessels in each service; (c) the number, names, and IMO numbers of the vessels in each service; (d) the name of the operator of each vessel; (e) the operating capacity of each vessel; (f) the frequency of each service; (g) the port itinerary of each service; (h) the total amount of annual vessel capacity supplied by each service; (i) the names of all of the carriers that charter space on each service but do not directly deploy vessels in the service; and (j) the allocation of vessel space in each service to any carrier. Liner services pertaining to the agreement include any services of the parties that would be terminated or altered as a result of the agreement becoming effective.

    Part 1(B)

    For the period after the proposed agreement would become effective, for the liner services pertaining to the agreement and for each party, provide: (a) The name of each service, (b) the name of the carrier(s) that would directly deploy vessels in each service; (c) the number, names, and IMO numbers of the vessels in each service; (d) the name of the operator of each vessel; (e) the operating capacity of each vessel; (f) the frequency of each service; (g) the port itinerary of each service; (h) the total amount of annual vessel capacity that would be supplied by each service; (i) the names of all of the carriers that would charter space on each service but would not directly deploy vessels in the service; and (j) the proposed allocation of vessel space in each service to any carrier.

    Part 2

    For the most recent calendar quarter for which complete data are available, for the liner services pertaining to the agreement and for each party, provide: (a) The name of each service; (b) the total number of sailings of each service; (c) the total amount of vessel capacity made available for each service; (d) the total amount of cargo carried on any vessel space counted above in part (c); and (e) the percentage of utilization on any vessel space counted above in part (c). For purposes of this Form, the percentage of utilization shall be calculated by dividing the amount of cargo carried in part (d) above by the corresponding amount of vessel capacity in part (c) above, which quotient is multiplied by 100. Liner services pertaining to the agreement include any services of the parties that would be terminated or altered as a result of the agreement becoming effective.

    Part 3

    Provide a narrative statement on any significant operational changes proposed to be implemented under the agreement and their impact on each party's liner services, ports of call, frequency of vessels calls at ports, and/or amount of vessel capacity deployment for each service pertaining to the agreement. Liner services pertaining to the agreement include any services of the parties that would be terminated or altered as a result of the agreement becoming effective.

    Section III

    Section III applies to agreements identified in 46 CFR 535.502 that contain any of the following authorities: (a) The discussion of, or agreement on, any kind of rate or charge; (b) the establishment of a joint service; (c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; or (d) the discussion of, or agreement on, any service contract matter. Parties to such agreements must complete the following parts:

    Part 1

    1. For the most recent calendar quarter for which complete data are available, provide the market shares of all liner operators for the entire geographic scope of the agreement. A joint service shall be treated as a single liner operator, whether it is an agreement line or a non-agreement line.

    2. Market share shall be calculated as: The total amount of liner cargo carried on each liner operator's liner vessels in the entire agreement scope during the most recent calendar quarter for which complete data are available, divided by the total liner cargo movement in the entire agreement scope during that same calendar quarter, which quotient is multiplied by 100. The calendar quarter used must be clearly identified. The market shares held by non-agreement lines as well as by agreement lines must be provided, stated separately.

    Part 2

    For each party that served all or any part of the geographic scope of the agreement during all or any part of the most recent 12-month period for which complete data are available, provide its total liner revenue, total liner cargo movement, and average revenue for its liner services within the geographic scope of the agreement. For purposes of this Form, total liner revenue means the total revenue in U.S. dollars of each party corresponding to the total cargo movement of its liner services within the geographic scope of the agreement, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis, accessorial charges, surcharges, and charges for inland cargo carriage. Average revenue shall be calculated as the per-cargo unit quotient of each party's total revenue divided by its total cargo movement.

    Part 3

    For each month of the same calendar quarter used in part 1 of this section, for each liner service operated by the parties to the agreement within the entire geographic scope of the agreement, provide: (a) The name of each service; (b) the total number of sailings for each service; (c) the amount of vessel capacity made available for each service, as measured in terms of: (i) The total amount per service, (ii) the amount allocated to each party of the agreement, and (iii) the amount chartered to non-agreement parties; (d) the total amount of liner cargo carried on any vessel space counted in part (c) above; and (e) the percentage of utilization on any vessel space counted above in part (c) above. For purposes of this Form, the percentage of utilization shall be calculated by dividing the amount of cargo carried in part (d) above by the corresponding amount of vessel capacity in part (c) above, which quotient is multiplied by 100.

    Part 4

    Provide a narrative statement on any significant operational changes that are anticipated or planned to occur after the agreement is scheduled to become effective that would impact any of the parties' liner services, ports of call, frequency of vessel calls at ports, and/or amount of vessel capacity deployment in any of the liner services operated by the parties to the agreement within the entire geographic scope of the agreement.

    Section IV

    Section IV applies to all agreements identified in 46 CFR 535.502. Parties to such agreements must complete all items in part 1 of this section.

    Part 1(A)

    State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding the Information Form and any information provided therein.

    Part 1(B)

    State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding a request for additional information or documents.

    Part 1(C)

    A representative of the parties shall sign the Information Form and certify that the information in the Form and all attachments and appendices are, to the best of his or her knowledge, true, correct and complete. The representative also shall indicate his or her relationship with the parties to the agreement.

    BILLING CODE 6731-AA-P EP15AU16.026 EP15AU16.027 EP15AU16.028 EP15AU16.029 EP15AU16.030 EP15AU16.031 EP15AU16.032 BILLING CODE 6731-AA-C[BILCOD]BILLING CODE 6731-AA-C[/BILCOD] 24. Revise Appendix B to part 535 to read as follows: Appendix B to Part 535—Monitoring Report Form and Instructions Monitoring Report Instructions

    1. All agreements between or among ocean common carriers identified in 46 CFR 535.702(a) must submit completed Monitoring Reports to the full extent required in sections I through III of this Report. Sections I and II must be completed in accordance with the authority contained in each agreement. Section III must be completed by all agreements subject to the Monitoring Report requirements. As applicable, complete each section of this Report in accordance with the specified format provided in FMC Form-151

    2. Where an agreement containing multiple authorities is subject to duplicate reporting requirements in the various sections of this Report, the parties may provide only one response so long as the reporting requirements within each section are fully addressed. The Monitoring Report specifies the data and information which must be reported for each section and the format in which it must be provided. If a party to an agreement is unable to supply a complete response to any item of this Report, that party shall provide either estimated data (with an explanation of why precise data are not available) or a detailed statement of reasons for noncompliance and the efforts made to obtain the required information. For purposes of this Report, if one of the agreement signatories is a joint service operating under an effective agreement, that signatory shall respond to the Report as a single agreement party.

    3. For clarification of the agreement terminology used in this Report, the parties may refer to the definitions provided in 46 CFR 535.104. In addition, the following definitions shall apply for purposes of this Report: Liner movement means the carriage of liner cargo; liner cargo means cargo carried on liner vessels in a liner service; liner operator means a vessel-operating common carrier engaged in liner service; liner vessel means a vessel used in a liner service; liner service means a definite, advertised schedule of sailings at regular intervals; and TEU means a unit of measurement equivalent to one 20-foot shipping container.

    4. When 50 percent or more of the total liner cargo carried by all of the parties in the geographic scope of the agreement was containerized, the required data for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all of the parties in the geographic scope of the agreement was non-containerized, the required data for each party shall be reported in non-containerized units of measurement. The unit of measurement for the non-containerized data must be specified clearly and applied consistently.

    5. Where the geographic scope of the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound data shall always be stated separately.

    6. For purposes of this Report, the term vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of the liner services pertaining to the agreement or operated by parties to the agreement.

    7. For purposes of this Report, the term a significant operational change means an increase or decrease in a party's liner service, ports of call, frequency of vessel calls at ports, and/or amount of vessel capacity deployment for a fixed, seasonally planned, or indefinite period of time. It excludes incidental or temporary alterations or changes that have little or no operational impact. If no significant operational change was implemented or occurred for the quarter, it shall be noted with the term “none” in response.

    8. When used in this Report, the terms “entire geographic scope of the agreement” or “agreement-wide” refer to the combined U.S. inbound trade and/or the combined U.S. outbound trade as such trades apply to the geographic scope of the agreement, as opposed to the term “sub-trade,” which is defined for reporting purposes as the scope of all liner movements between each U.S. port range and each foreign country within the scope of the agreement. U.S. port ranges are defined as: (a) The Atlantic and Gulf, which includes ports along the eastern seaboard and the Gulf of Mexico from the northern boundary of Maine to Brownsville, Texas, all ports bordering upon the Great Lakes and their connecting waterways, all ports in the State of New York on the St. Lawrence River, and all ports in Puerto Rico and the U.S. Virgin Islands; and (b) the Pacific, which includes all ports in the States of Alaska, Hawaii, California, Oregon, and Washington, all ports in Guam, American Samoa, Northern Marianas, Johnston Island, Midway Island, and Wake Island.

    Section I

    Section I applies to agreements identified in 46 CFR 535.702(a)(1) between or among three or more ocean common carriers that contain the authority to discuss or agree on capacity rationalization as defined in 46 CFR 535.104(e). Parties to such agreements must complete the following parts:

    Part 1

    State the full name of the agreement and the agreement number assigned by the FMC.

    Part 2(A)

    For each month of the preceding calendar quarter, for the liner services pertaining to the agreement and for each party, provide: (a) The name of each service; (b) the total number of sailings for each service; (c) the amount of vessel capacity made available for each service, as measured in terms of: (i) The total amount per service, (ii) the amount allocated to each party of the agreement, and (iii) the amount chartered to non-agreement parties; (d) the total amount of liner cargo carried on any vessel space counted in part (c) above; and (e) the percentage of utilization on any vessel space counted in part (c) above. For purposes of this Report, the percentage of utilization shall be calculated by dividing the amount of cargo carried in part (d) above by the corresponding amount of vessel capacity in part (c) above, which quotient is multiplied by 100.

    Part 2(B)

    Provide a narrative statement on any significant reductions, to be implemented under the agreement, in the amounts of vessel capacity for the parties' liner services that pertain to the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and the reasons for the significant reduction and its effects on the liner service and the total amount of vessel capacity for such service that would be subject to the reduction. The narrative statement shall be submitted to the Director, Bureau of Trade Analysis, no later than 15 days after a significant reduction in the amount of vessel capacity has been agreed upon by the parties but prior to the implementation of the actual reduction under the agreement. For purposes of this part, a significant reduction refers to the removal from a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant reduction excludes instances when vessels may be temporarily altered, or when vessels are removed from a liner service and vessels of similar or greater capacity are substituted. It also excludes operational changes in vessels or vessel space that would have little or no impact on the amount of vessel capacity offered in a liner service or a trade.

    Part 3

    Excluding those changes already reported in part 2(B) of this section, provide a narrative statement of any other significant operational changes implemented under the agreement during the preceding calendar quarter and their impact on each party's liner services, ports of call, frequency of vessel calls at ports, and/or amount of vessel capacity deployment for each service pertaining to the agreement.

    Section II

    Section II applies to agreements identified in 46 CFR 535.702(a)(2) where the parties to the agreement hold a combined market share, based on cargo volume, of 35 percent or more in the entire U.S. inbound or outbound geographic scope of the agreement and the agreement authorizes any of the following authorities: (a) The discussion of, or agreement on, any kind of rate or charge; (b) the establishment of a joint service; (c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; (d) the discussion of, or agreement on, any service contract matter. Parties to such agreements must complete the following parts.

    Part 1

    State the full name of the agreement and the agreement number assigned by the FMC.

    Part 2

    For each month of the preceding calendar quarter and for each party, provide its total liner revenue, total liner cargo movement, and average revenue for its liner services within the entire geographic scope of the agreement. For purposes of this Report, total liner revenue means the total revenue in U.S. dollars of each party corresponding to the total cargo movement of its liner services within the geographic scope of the agreement, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis, accessorial charges, surcharges, and charges for inland cargo carriage. Average revenue shall be calculated as the per-cargo unit quotient of each party's total revenue divided by its total cargo movement

    Part 3

    For each month of the preceding calendar quarter, for each liner service operated by the parties to the agreement within the entire geographic scope of the agreement, provide: (a) The name of each service; (b) the total number of sailings for each service; (c) the amount of vessel capacity made available for each service, as measured in terms of: (i) The total amount per service, (ii) the amount allocated to each party of the agreement, and (iii) the amount chartered to non-agreement parties; (d) the total amount of liner cargo carried on any vessel space counted in part (c) above; and (e) the percentage of utilization on any vessel space counted in part (c) above. For purposes of this Report, the percentage of utilization shall be calculated by dividing the amount of cargo carried in part (d) above by the corresponding amount of vessel capacity in part (c) above, which quotient is multiplied by 100.

    Section III

    Section III applies to all agreements identified in 46 CFR 535.702(a). Parties to such agreements must complete all items in part 1 of this section.

    Part 1(A)

    State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding the Monitoring Report and any information provided therein.

    Part 1(B)

    A representative of the parties shall sign the Monitoring Report and certify that the information in the Report and all attachments and appendices are, to the best of his or her knowledge, true, correct and complete. The representative also shall indicate his or her relationship with the parties to the agreement.

    BILLING CODE 6731-AA-P EP15AU16.033 EP15AU16.034 EP15AU16.035 EP15AU16.036

    By the Commission.

    Karen V. Gregory, Secretary.
    [FR Doc. 2016-18805 Filed 8-12-16; 8:45 am] BILLING CODE 6731-AA-C
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket Nos. 10-90, 14-58 and CC Docket No. 01-92, Report No. 3047] Petitions for Reconsideration and Clarification of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice of rulemaking petition; correction.

    SUMMARY:

    The Federal Communications Commission published a document in the Federal Register of July 29, 2016, concerning request for oppositions on Petitions for Reconsideration and Clarification. The document contained incorrect dates.

    DATES:

    Oppositions to the Petitions must be filed on or before August 15, 2016. Replies to an opposition must be filed on or before August 25, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Suzanne Yelen, Wireline Competition Bureau, (202) 418-7400, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    This summary contains corrections to the dates portion of a Federal Register summary, 81 FR 49921 (July 29, 2016).

    In the FR Doc. 2016-17900, published July 29, 2016 (81 FR 49921), make the following correction.

    On page 49921, in the third column, in the “dates” section, correct the second sentence to read “Replies to an opposition must be filed on or before August 25, 2016”.

    Federal Communications Commission. Sheryl D. Todd, Deputy Secretary, Office of the Secretary.
    [FR Doc. 2016-19308 Filed 8-12-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2015-0148; 4500030113] RIN 1018-BA86 Endangered and Threatened Wildlife and Plants; 6-Month Extension of Final Determination for the Proposed Listing of the Headwater Chub and Distinct Population Segment of the Roundtail Chub as Threatened Species AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; reopening of the comment period.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce a 6-month extension of the determination of whether the headwater chub (Gila nigra) and a distinct population segment of the roundtail chub (Gila robusta) are threatened species, and we announce the reopening of the comment period on the proposed rules to add these species to the List of Endangered and Threatened Wildlife. We are taking this action based on our finding that there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to our proposed regulations to add these species to the List of Endangered and Threatened Wildlife, making it necessary to solicit additional information by reopening the comment period for 30 days.

    DATES:

    The comment period end date is September 14, 2016. We request that comments be submitted by 11:59 p.m. Eastern Time on the closing date.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate Docket No.: FWS-R2-ES-2015-0148 for the proposed threatened status for headwater chub and the roundtail chub distinct population segment. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2015-0148; U.S. Fish & Wildlife Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by one of the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). Comments previously submitted need not be resubmitted as they are already incorporated into the public record and will be fully considered in the final determinations.

    FOR FURTHER INFORMATION CONTACT:

    Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Office; telephone 602-242-0210; facsimile 602-242-2513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800-877-8339).

    SUPPLEMENTARY INFORMATION: Background

    On October 7, 2015 (80 FR 60754), we published a proposed rule to determine that the headwater chub and the lower Colorado River basin distinct population segment (DPS) of the roundtail chub are threatened species under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). For a description of previous Federal actions concerning these species, please refer to the proposed listing rule (October 7, 2015; 80 FR 60754). We solicited and received independent scientific review of the information contained in the proposed rule from peer reviewers with expertise in these two chub species, in accordance with our July 1, 1994, peer review policy (59 FR 34270).

    Section 4(b)(6) of the Act and its implementing regulations in title 50 of the Code of Federal Regulations at 50 CFR 424.17(a) require that we issue one of four documents within 1 year of a proposed determination: (1) A final rule to implement such determination or revision, (2) a finding that such revision should not be made, (3) a withdrawal of the proposed rule upon a finding that available evidence does not justify the proposed action, or (4) a document extending such 1-year period by an additional period of not more than 6 months because there is substantial disagreement among scientists knowledgeable about the species regarding the sufficiency or accuracy of the available data relevant to the proposed determination or revision.

    During the public comment period, we received multiple comments on the proposed listing determinations from scientists with knowledge of the species regarding the sufficiency or accuracy of the available data used to support these proposed regulations, as well as the methodology used to develop the proposed rule. We also received comments through the peer review process on the proposed rule from scientists with expertise on the biology of chubs or similar species. In particular, specific comments questioned the taxonomic distinctness of the two species. This evidence of substantial disagreement regarding the sufficiency or accuracy of the available data warrants a 6-month extension before the final determination.

    Currently, the American Fisheries Society (Page et al. 2013, p. 71), which is recognized as the authority in establishing taxonomic status of fish, considers headwater chub and roundtail chub to be separate species. Consequently, in the proposed rule (October 7, 2015; 80 FR 60754) we evaluated headwater and roundtail chubs as separate species. However, commenters raised questions regarding the taxonomic distinctness of the headwater and roundtail chubs, as related to the Gila chub (Gila intermedia). The Gila chub is listed as an endangered species (November 2, 2005; 70 FR 66664). Some scientists knowledgeable about the species contend that the three entities are not separate species, but instead constitute a “species complex.”

    Since our analysis, new information is available regarding taxonomy and genetic analysis published by Dowling et al. 2015 (entire). In addition, the Arizona Game and Fish Department requested that the American Fisheries Society convene a panel or workshop to address the five following objectives:

    (1) Determine if the taxonomic classification of the three species remains valid and scientifically defensible given both historical and recent studies and information;

    (2) If the taxonomic classification is found invalid, determine a defensible taxonomic classification of the chub complex using the best available science;

    (3) Provide a new set of guidelines or classification key to follow;

    (4) Publish the findings and recommendations of this panel; and

    (5) Provide the results to the Southwest Region of the U.S. Fish and Wildlife Service.

    The American Fisheries Society agreed to commence a Names of Fishes panel to evaluate the most recent literature associated with roundtail chub, headwater chub, and Gila chub taxonomy. The panel met in April 2016, but has not produced a decision report. However, our understanding is that a report is forthcoming in the immediate future.

    As a result of the comments we received during the comment period, we find that there is substantial disagreement among scientists knowledgeable about the species regarding the sufficiency or accuracy of the available data that are relevant to our determination of the proposed regulations. Moreover, the American Fisheries Society's decision on the taxonomy of the roundtail chub, headwater chub, and Gila chub is expected in the immediate future. In consideration of these scientific disagreements, and with expectation that additional information will resolve the disagreement and that a potential solution is forthcoming, we have determined that a 6-month extension of the final determinations for these rulemakings is warranted. Thus, we hereby extend the final determinations for 6 months in order to solicit information that will help to clarify these issues and to fully analyze this information.

    As noted in the proposed listing rule (October 7, 2015; 80 FR 60754), section 4(b)(6)(A) of the Act requires that we make final listing determinations within 1 year of the proposed rule, which would be October 7, 2016. However, as previously stated, section 4(b)(6)(B) of the Act authorizes a 6-month extension, which would extend our final decisions to April 7, 2017.

    Public Comments

    We will accept written comments and information during this reopened comment period on our proposed regulations for the headwater chub and the lower Colorado River basin DPS of the roundtail chub that was published in the Federal Register on October 7, 2015 (80 FR 60754). We will consider any information and recommendations received during this open comment period. We intend that any final action resulting from these proposals be as accurate as possible and be based on the best available scientific and commercial data.

    In consideration of the scientific and other comments received regarding the data used to support these proposed regulations, we are particularly interested in new information and data regarding genetics and morphology pertaining to roundtail chub, headwater chub, and Gila chub that would aid in the ongoing taxonomic classification of these species. New information includes data that was not included in the proposed rule and associated documents for the headwater and roundtail chubs because it was not available to the Service or was not completed at the time.

    If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determinations. Our final determinations will take into consideration all written comments and any additional information we received.

    You may submit your comments and materials concerning the October 15, 2015, proposed rule (80 FR 60754) by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Service Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2015-0148. Copies of the proposed rule are also available at http://www.fws.gov/southwest/es/arizona.

    Authority

    The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 4, 2016. Matthew Huggler, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-19340 Filed 8-12-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 160219129-6129-01] RIN 0648-BF78 List of Fisheries for 2017 AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    The National Marine Fisheries Service (NMFS) publishes its proposed List of Fisheries (LOF) for 2017, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2017 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must classify each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of mortality and serious injury of marine mammals that occurs incidental to each fishery. The classification of a fishery on the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan (TRP) requirements.

    DATES:

    Comments must be received by September 14, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2016-0045, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0045,

    2. Click the “Comment Now!” icon, complete the required fields,

    3. Enter or attach your comments.

    Mail: Submit written comments to Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 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).

    FOR FURTHER INFORMATION CONTACT:

    Lisa White, Office of Protected Resources, 301-427-8494; Allison Rosner, Greater Atlantic Region, 978-281-9328; Jessica Powell, Southeast Region, 727-824-5312; Elizabeth Petras, West Coast Region, 206-526-6155; Aleria Jensen, Alaska Region, 907-586-7236; Dawn Golden, Pacific Islands Region, 808-725-5000. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.

    SUPPLEMENTARY INFORMATION:

    What is the List of Fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

    How does NMFS determine in which category a fishery is placed?

    The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

    Fishery Classification Criteria

    The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

    Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

    Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

    Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injury of marine mammals).

    Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injury of marine mammals).

    Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

    Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

    Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

    Other Criteria That May Be Considered

    The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery: “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is `frequent,' `occasional,' or `remote' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

    Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

    How does NMFS determine which species or stocks are included as incidentally killed or injured in a fishery?

    The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs reviewed for the 2017 LOF generally summarizes data from 2009-2013. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e., MMPA reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF, but in an effort to be consistent with the most recent SARs and across the LOF, NMFS typically restricts the analysis to data within the five-year time period summarized in the current SAR.

    For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interaction that cannot be attributed to a specific fishery) species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

    Where does NMFS obtain information on the level of observer coverage in a fishery on the LOF?

    The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/observer-home/.

    How do I find out if a specific fishery is in Category I, II, or III?

    This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRTs).

    Are high seas fisheries included on the LOF?

    Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

    HSFCA permits are valid for five years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at: http://www.nmfs.noaa.gov/ia/permits/highseas.html.

    Where can I find specific information on fisheries listed on the LOF?

    Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF; the basis for the fishery's initial classification; classification changes to the fishery; changes to the list of species and/or stocks incidentally killed or injured in the fishery; fishery gear and methods used; observer coverage levels; fishery management and regulation; and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, linked to the “List of Fisheries by Year” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

    Am I required to register under the MMPA?

    Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

    How do I register and receive my Marine Mammal Authorization Program (MMAP) authorization certificate?

    NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials. In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Certificates may also be obtained by visiting the Greater Atlantic Regional Office Web site (http://www.greateratlantic.fisheries.noaa.gov/Protected/mmp/mmap/). In the Southeast Region, NMFS will issue vessel or gear owners notification of registry and vessel or gear owners may receive their authorization certificate by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/) and following the instructions for printing the certificate.

    The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES).

    How do I renew my registration under the MMAP?

    In Alaska regional and Greater Atlantic regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional fisheries, vessel or gear owners receive an authorization certificate by January 1 for state fisheries and with their permit renewal for federal fisheries. In West Coast regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION).

    In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/) to print their own certificate.

    Am I required to submit reports when I kill or injure a marine mammal during the course of commercial fishing operations?

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

    Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: http://www.nmfs.noaa.gov/pr/interactions/mmap/#form or by contacting the appropriate Regional office (see FOR FURTHER INFORMATION). Forms may be submitted via any of the following means: (1) Online using the electronic form; (2) emailed as an attachment to [email protected]; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures can be found in 50 CFR 229.6.

    Am I required to take an observer aboard my vessel?

    Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements can be found in 50 CFR 229.7.

    Am I required to comply with any marine mammal TRP regulations?

    Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/teams.html. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

    Where can I find more information about the LOF and the MMAP?

    Information regarding the LOF and the MMAP, including: Registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery; and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, or from any NMFS Regional Office at the addresses listed below:

    NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;

    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

    NMFS, West Coast Region, Seattle Office, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Elizabeth Petras, Protected Resources Division;

    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Aleria Jensen; or

    NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Dawn Golden.

    Sources of Information Reviewed for the 2017 LOF

    NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

    NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports through the MMAP, reports to the SRGs, conference papers, FMPs, and ESA documents.

    The LOF for 2017 was based on, among other things, stranding data; fisher self-reports; and SARs, primarily the 2015 SARs, which are based on data from 2009-2013. The final SARs referenced in this LOF include: 2014 (80 FR 50599, August 20, 2015) and 2015 (81 FR 38676, June 14, 2016). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

    Summary of Changes to the LOF for 2017

    The following summarizes the proposed changes to the LOF for 2017, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS proposes two re-classifications of fisheries provided in the LOF for 2017. Additionally, NMFS proposes adding one fishery to the LOF. NMFS proposes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2017 are identical to those provided in the LOF for 2016 with the proposed changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BSAI (Bering Sea and Aleutian Islands), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

    Commercial Fisheries in the Pacific Ocean Classification of Fisheries

    NMFS proposes to reclassify the AK miscellaneous finfish handline/hand troll and mechanical jig fishery from Category III to Category II. Category II classification is driven by take of the Western North Pacific stock of humpback whales (see proposed addition of this stock to list of stocks incidentally injured or killed below). Based on the most recent five years of available information, mortality and serious injury of the Western North Pacific stock of humpback whales by this fishery is 6.89% of the PBR of 2.9 (Allen and Angliss, 2016). Mortality and serious injury levels greater than 1% and less than 50% of PBR meet the Category II threshold. Therefore, NMFS proposes to reclassify the AK miscellaneous finfish handline/hand troll and mechanical jig fishery as a Category II fishery.

    NMFS proposes to elevate the CA spiny lobster fishery from Category III to Category II. Category II classification for this fishery is driven by takes of the CA/OR/WA offshore stock of bottlenose dolphin. Based on the average annual fishery-related mortality and serious injury of the CA/OR/WA offshore stock of bottlenose dolphin by this fishery is 3.6% of the PBR of 5.5 (Carretta et al., 2014). Therefore, NMFS proposes to reclassify the CA spiny lobster fishery as a Category II fishery. NMFS evaluated the 2008 bottlenose dolphin, CA/OR/WA offshore stock, entanglement during the proposed 2010 LOF process. At that time, the entanglement was characterized as a non-serious injury in the NMFS stranding database, as the animal had been disentangled, and the incident was not included in the 2010 SAR (Carretta et al., 2011). Following NMFS' 2012 policy on distinguishing serious from non-serious injury, the bottlenose dolphin entanglement was determined to be a serious injury and was included in the 2013 SAR (NMFS, 2012).

    Number of Vessels/Persons

    NMFS proposes updates to the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:

    Category Fishery Number of
  • vessels/persons
  • (2016 LOF)
  • Number of
  • vessels/persons
  • (2017 LOF)
  • I HI deep-set longline 135 139 II HI shallow-set longline 15 20 II American Samoa longline 22 20 III American Samoa bottomfish handline 17 24
    List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean

    NMFS proposes to add the Hawaii stock of pygmy killer whale and to remove the Hawaii pelagic stock of pantropical spotted dolphin on the list of stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery. A pygmy killer whale was observed dead in this fishery in 2013. No pantropical spotted dolphin mortalities or injuries have been documented in the most recent five years of data. Annual average estimated pygmy killer whale mortality and serious injury from the Hawaii deep-set longline fishery during 2009 to 2013 was 1.1. During the same time frame mortality and serious injury was 0 for pantropcial spotted dolphin (McCracken, 2015). Observer coverage for this fishery from 2009 to 2013 was 20.6, 21.1, 20.3, 20.4, and 20.4 percent, respectively.

    NMFS proposes to add the Hawaii stock of rough-toothed dolphin and to remove the Hawaii stock of Kogia spp. on the list of stocks killed or injured in the Category II Hawaii shallow-set longline fishery. A rough-toothed dolphin was observed dead in this fishery in 2013. Annual average estimated rough-toothed dolphin mortality and serious injury from the Hawaii shallow-set longline fishery during 2009 to 2013 was 0.2. For the same time frame mortality and serious injury was 0 for Kogia spp. (McCracken, 2015). Observer coverage for this fishery from 2009 to 2013 was 100 percent each year.

    NMFS proposes to add the Western North Pacific and Central North Pacific stocks of humpback whale and the Northeast Pacific stock of fin whale to the list of stocks killed or injured in the AK miscellaneous finfish handline/hand troll and mechanical jig fishery. The stranding network documented a humpback whale mortality in 2013 that was assigned to both stocks based on spatial overlap. We also propose to add a “1” to the Western North Pacific stock to indicate it is driving the classification of this fishery. In 2012, the stranding network documented a fin whale mortality. There is no observer coverage in this fishery.

    NMFS proposes to add the CA/OR/WA stock of short-finned pilot whale to the list of stocks incidentally killed or injured in the CA thresher shark/swordfish drift gillnet (≥14 in mesh) fishery. Two short-finned pilot whales were observed dead in this fishery in 2014 (Carretta et al., 2016). Observer coverage for this fishery from 2010 to 2014 was 11.9, 19.5, 18.6, 37.4, and 23.7 percent, respectively.

    Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Addition of Fisheries

    NMFS propose to add the Northeast and Mid-Atlantic fyke net fishery to the list of Category III fisheries. Fyke nets are defined as a series of wood or metal hoops covered with netting. These nets are 2.5-5.0 m (8.2-16.4 ft) long. There are usually two wings of netting at the entrance that are attached to upright stakes and give the overall net a “Y-shape.” There are one or more funnels inside the net that direct fish to the rear of the net (the “car”) where they become trapped. Occasionally, a long leader is used to direct fish to the entrance. Fish are removed by lifting the car out of the water and loosening a rope securing the rear of the car (Stevenson et al., 2004).

    These nets are generally fished in shallow water, targeting estuarine and coastal species including but not limited to glass eels (elvers), winter flounder, menhaden, croaker, bluefish, river herring, Atlantic croaker, and weakfish (Fullencamp, 2006). These nets are utilized from Maine through Virginia. They are typically set in contact with the bottom, in areas with strong currents (FAO, 2001). Fyke nets are managed by state regulations, and fishing activity is not managed under a federal FMP. There have been no documented interactions between fyke nets and marine mammals; and, given the primarily estuarine nature of these fisheries, we expect a remote likelihood of or no mortalities or serious injuries to occur.

    Number of Vessels/Persons

    NMFS proposes updates to the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:

    Category Fishery Number of
  • vessels/persons
  • (2016 LOF)
  • Number of
  • vessels/persons
  • (2017 LOF)
  • I Mid-Atlantic Gillnet 4063 3950 II Atlantic Mixed Species Trap/Pot 3284 3436 II Chesapeake Bay Inshore Gillnet 272 248 II Mid-Atlantic Bottom Trawl 994 785 II Northeast Drift Gillnet 1567 1036 II VA Pound Net 47 26 II Northeast Bottom Trawl 3132 2238 II Mid-Atlantic Haul Beach Seine 243 359 II Mid-Atlantic Midwater Trawl 507 382 II Northeast Anchored Gillnet 995 852 II Gulf of Mexico Gillnet 724 248 II NC Inshore Gillnet 1323 2850 II Southeast Atlantic Gillnet 357 273 II Southeastern U.S. Atlantic, Gulf of Mexico Stone Crab Trap/Pot 1282 1384 II Atlantic Blue Crab Trap/Pot 8557 7714 II NC Long Haul Seine 372 30 II NC Roe Mullet Stop Net 13 1
    List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean

    NMFS proposes to remove the Western North Atlantic stock of harbor seal from the list of species incidentally killed or injured in the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery. Harbor seals were originally listed as a species killed or injured by this fishery in the 1996 LOF (60 FR 31666; June 16, 1995); however, there have been no documented takes in this fishery within the last five years. Takes of seals in the lobster fishery have not been listed as a source of annual human-caused mortality since the 2005 stock assessment report (Waring et al., 2005). In the 2005 stock assessment reports and prior stock assessment reports going back to 1995, takes were estimated to occur twice a year in mid-coastal Maine fisheries (Gilbert and Wynne, 1985).

    NMFS proposes to remove Risso's dolphin, Western North Atlantic stock, and add the Western North Atlantic stocks of harbor seal and gray seal to the list of species incidentally killed or injured in the Category II Mid-Atlantic Midwater trawl fishery. The last Risso's dolphin take in this fishery was documented in 2008, and no interactions have been documented since (Waring et al., 2015). Risso's dolphins were originally added as a species incidentally killed or injured in the Mid-Atlantic midwater trawl fishery in the 1996 LOF (60 FR 31666; June 16, 1995), which later became the Atlantic squid, mackerel, butterfish trawl fishery (62 FR 28657; May 27, 1997) until the 2005 LOF when the name was again changed to Mid-Atlantic midwater trawl fishery (69 FR 70094; December 2, 2004).

    One harbor seal and one gray seal were both observed killed in this fishery in 2010. An expanded bycatch estimate has not been generated for either species. Until the bycatch estimates can be developed, the average annual fishery-related mortality and serious injury for 2009-2013 for both species is calculated at 0.2 animals (1 animal/5 years). Observer coverage for this fishery from 2009-2013 was 25, 41, 21, 7, and 5 percent, respectively.

    NMFS proposes to add the Canadian East coast stock of minke whale to the list of species incidentally killed or injured in the Category II Northeast midwater trawl fishery. During July 2013, one minke whale was observed dead in a midwater otter trawl on Georges Bank. Due to the small sample size of observed takes, an expanded estimate has not been calculated. Annual average estimated minke whale mortality and serious injury from the Northeast midwater trawl fishery (including pair trawl) during 2009 to 2013 was 0.2. Observer coverage from 2009-2013 was 53, 41, 45, 37, and 42 percent, respectively.

    NMFS proposes to remove the Canadian East coast stock of minke whale from the list of species incidentally killed or injured in the Category II Northeast bottom trawl fishery. Minke whales were added as a species incidentally killed or injured in this fishery in the 2013 LOF (78 FR 23708; April 22, 2013) due to observed takes occurring in 2004 and 2008; however, there have been no observed takes of minke whales in this fishery since 2008 (Waring et al., 2016). Observer coverage from 2009-2013 was 16, 26, 17, 15 and 17 percent, respectively.

    NMFS proposes to remove the Western North Atlantic stock of short-finned pilot whale from the list of species incidentally killed or injured in the Category II Northeast sink gillnet fishery. Short-finned pilot whales were originally listed as a species killed or injured in this fishery in the 2013 LOF (78 FR 23708; April 22, 2013) due to an unknown pilot whale species take recorded in 2010 (Waring et al., 2012). According to the 2015 Stock Assessment Report, pilot whale mortalities are generally observed north of 40° N. latitude in this fishery and, therefore, should be attributed to the long-finned pilot whale stock (Waring et al., 2016). Observer coverage for this fishery for 2009-2013 was 17, 19, 15, 11 and 18 percent, respectively.

    NMFS proposes to remove the following stocks from the list of species incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery: Western North Atlantic stock of Atlantic spotted dolphin, Gulf of Mexico stock of Gervais beaked whale, Gulf of Mexico oceanic stock of killer whale, Western North Atlantic stock of Pantropical spotted dolphin, and Gulf of Mexico oceanic stock of sperm whale. There have been no observed mortalities or injuries to these species in the most recent five years of data (Waring et al., 2016). Observer coverage in this fishery in the most recent five year period (2009-2013) has been 10, 8, 9, 7, and 9 percent, respectively.

    NMFS proposes to add unknown stock (likely Northern migratory coastal or Southern migratory coastal) of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category II Chesapeake Bay inshore gillnet fishery based on a 2013 mortality in 9-inch (22.9 cm) stretched mesh gillnet gear (Waring et al., 2016).

    NMFS proposes to add the Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category II Gulf of Mexico menhaden purse seine fishery based on a 2011 observed injury and two-self reported mortalities in 2012 (Waring et al., 2016).

    NMFS proposes to add the Florida Keys stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category III Florida spiny lobster trap/pot fishery based on the location and gear description in a 2013 stranding report (Waring et al., 2016).

    NMFS proposes to add the Barataria Bay stock and the Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category III Gulf of Mexico blue crab trap/pot fishery based on documented mortalities in 2011 (Waring et al., 2016). A Barataria Bay stock animal was also disentangled and released alive in 2012.

    Commercial Fisheries on the High Seas Number of Vessels/Persons

    NMFS proposes updates to the estimated number of vessels/persons on the High Seas (Table 3) as follows:

    Category Fishery Number of
  • vessels/persons
  • (2016 LOF)
  • Number of
  • vessels/persons
  • (2017 LOF)
  • I Western Pacific pelagic longline (HI deep-set component) 135 139 II Atlantic highly migratory species drift gillnet 1 0 II South Pacific tuna purse seine 39 38 II South Pacific albacore troll longline 15 10 II South Pacific tuna longline 8 2 II Western Pacific pelagic longline (HI shallow-set component) 15 20 II Pacific highly migratory species handline/pole and line 50 46 II South Pacific albacore troll handline/pole and line 9 7 II Western Pacific pelagic handline/pole and line 5 2 II South Pacific albacore troll troll 38 30 II South Pacific tuna troll 5 4 II Western Pacific pelagic troll 21 17 III Pacific highly migratory species longline 126 114 III Pacific highly migratory species purse seine 8 6 III Pacific highly migratory species troll 243 187
    List of Species and/or Stocks Incidentally Killed or Injured on the High Seas

    NMFS proposes to add the Hawaii stock of pygmy killer whale and to remove the Hawaii pelagic stock of pantropical spotted dolphin on the list of stocks incidentally killed or injured in the Category I Western Pacific pelagic longline (HI deep-set component) fishery to be consistent with proposed changes to Table 1 because this fishery is a component of an existing fishery operating within U.S. waters.

    NMFS proposes to add the Hawaii stock of rough-toothed dolphin and to remove the Hawaii stock of Kogia spp. on the list of stocks killed or injured in the Category II Western Pacific pelagic longline (HI shallow-set component) fishery to be consistent with proposed changes to Table 1 because this fishery is a component of an existing fishery operating within U.S. waters.

    NMFS proposes to add the CA breeding stock of northern elephant seal to the list of stocks killed or injured in the Category II Western Pacific pelagic longline (HI shallow-set component) fishery based on a 2013 observed serious injury. Annual average estimated northern elephant seal mortality and serious injury from the fishery during 2009 to 2013 was 0.2 (McCracken, 2015).

    List of Fisheries

    The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, Table 3 lists commercial fisheries on the high seas, and Table 4 lists fisheries affected by TRPs or TRTs.

    In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisher used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION).

    For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this rule, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

    Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e., MMPA reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2012. This list includes all species and/or stocks known to be killed or injured in a given fishery but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMPA reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification (i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent [Category I], or greater than 1 percent and less than 50 percent [Category II], of a stock's PBR) by a “1” after the stock's name.

    In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “2” after the fishery's name.

    There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.

    Table 1—List of Fisheries—Commercial Fisheries in the Pacific Ocean Fishery description Estimated number of vessels/persons Marine mammal species and/or stocks incidentally killed or injured CATEGORY I LONGLINE/SET LINE FISHERIES: HI deep-set longline * ^ 139 Bottlenose dolphin, HI Pelagic. False killer whale, MHI Insular.1 False killer whale, HI Pelagic.1 False killer whale, NWHI. Pygmy killer whale, HI. Risso's dolphin, HI. Short-finned pilot whale, HI. Sperm whale, HI. Striped dolphin, HI. GILLNET FISHERIES: CA thresher shark/swordfish drift gillnet (≥14 in mesh) * 18 Bottlenose dolphin, CA/OR/WA offshore. California sea lion, U.S. Humpback whale, CA/OR/WA. Long-beaked common dolphin, CA. Minke whale, CA/OR/WA. Northern elephant seal, CA breeding. Northern right-whale dolphin, CA/OR/WA. Pacific white-sided dolphin, CA/OR/WA. Risso's dolphin, CA/OR/WA. Short-beaked common dolphin, CA/OR/WA. Short-finned pilot whale, CA/OR/WA. Sperm Whale, CA/OR/WA.1 CATEGORY II GILLNET FISHERIES: CA halibut/white seabass and other species set gillnet (>3.5 in mesh) 50 California sea lion, U.S.
  • Harbor seal, CA.
  • Humpback whale, CA/OR/WA.1 Long-beaked common dolphin, CA. Northern elephant seal, CA breeding. Sea otter, CA. Short-beaked common dolphin, CA/OR/WA. CA yellowtail, barracuda, and white seabass drift gillnet (mesh size ≥3.5 in and <14 in) 2 30 California sea lion, U.S.
  • Long-beaked common dolphin, CA.
  • Short-beaked common dolphin, CA/OR/WA.
  • AK Bristol Bay salmon drift gillnet 2 1,862 Beluga whale, Bristol Bay. Gray whale, Eastern North Pacific. Harbor seal, Bering Sea. Northern fur seal, Eastern Pacific. Pacific white-sided dolphin, North Pacific. Spotted seal, AK. Steller sea lion, Western U.S. AK Bristol Bay salmon set gillnet 2 979 Beluga whale, Bristol Bay.
  • Gray whale, Eastern North Pacific.
  • Harbor seal, Bering Sea.
  • Northern fur seal, Eastern Pacific.
  • Spotted seal, AK.
  • AK Kodiak salmon set gillnet 188 Harbor porpoise, GOA.1
  • Harbor seal, GOA.
  • Sea otter, Southwest AK.
  • Steller sea lion, Western U.S.
  • AK Cook Inlet salmon set gillnet 736 Beluga whale, Cook Inlet.
  • Dall's porpoise, AK.
  • Harbor porpoise, GOA.
  • Harbor seal, GOA.
  • Humpback whale, Central North Pacific.1
  • Sea otter, South central AK.
  • Steller sea lion, Western U.S.
  • AK Cook Inlet salmon drift gillnet 569 Beluga whale, Cook Inlet.
  • Dall's porpoise, AK.
  • Harbor porpoise, GOA.1
  • Harbor seal, GOA.
  • Steller sea lion, Western U.S.
  • AK Peninsula/Aleutian Islands salmon drift gillnet 2 162 Dall's porpoise, AK.
  • Harbor porpoise, GOA.
  • Harbor seal, GOA.
  • Northern fur seal, Eastern Pacific.
  • AK Peninsula/Aleutian Islands salmon set gillnet 2 113 Harbor porpoise, Bering Sea.
  • Northern sea otter, Southwest AK.
  • Steller sea lion, Western U.S.
  • AK Prince William Sound salmon drift gillnet 537 Dall's porpoise, AK. Harbor porpoise, GOA.1 Harbor seal, GOA. Northern fur seal, Eastern Pacific. Pacific white-sided dolphin, North Pacific. Sea otter, South central AK. Steller sea lion, Western U.S.1 AK Southeast salmon drift gillnet 474 Dall's porpoise, AK. Harbor porpoise, Southeast AK. Harbor seal, Southeast AK. Humpback whale, Central North Pacific.1 Pacific white-sided dolphin, North Pacific. Steller sea lion, Eastern U.S. AK Yakutat salmon set gillnet 2 168 Gray whale, Eastern North Pacific. Harbor Porpoise, Southeastern AK. Harbor seal, Southeast AK. Humpback whale, Central North Pacific (Southeast AK). WA Puget Sound Region salmon drift gillnet (includes all inland waters south of U.S.-Canada border and eastward of the Bonilla-Tatoosh line-Treaty Indian fishing is excluded) 210 Dall's porpoise, CA/OR/WA.
  • Harbor porpoise, inland WA 1 Harbor seal, WA inland.
  • TRAWL FISHERIES: AK Bering Sea, Aleutian Islands flatfish trawl 32 Bearded seal, AK. Gray whale, Eastern North Pacific. Harbor porpoise, Bering Sea. Harbor seal, Bering Sea. Humpback whale, Western North Pacific.1 Killer whale, AK resident.1 Killer whale, GOA, AI, BS transient.1 Northern fur seal, Eastern Pacific. Ringed seal, AK. Ribbon seal, AK. Spotted seal, AK. Steller sea lion, Western U.S.1 Walrus, AK. AK Bering Sea, Aleutian Islands pollock trawl 102 Bearded Seal, AK. Dall's porpoise, AK. Harbor seal, AK. Humpback whale, Central North Pacific. Humpback whale, Western North Pacific. Northern fur seal, Eastern Pacific. Ribbon seal, AK. Ringed seal, AK. Spotted seal, AK. Steller sea lion, Western U.S.1 AK Bering Sea, Aleutian Islands rockfish trawl 17 Killer whale, ENP AK resident.1
  • Killer whale, GOA, AI, BS transient.1
  • POT, RING NET, AND TRAP FISHERIES: CA spot prawn pot 25 Gray whale, Eastern North Pacific.
  • Humpback whale, CA/OR/WA.1
  • CA Dungeness crab pot 570 Gray whale, Eastern North Pacific.
  • Humpback whale, CA/OR/WA.1
  • OR Dungeness crab pot 433 Gray whale, Eastern North Pacific.
  • Humpback whale, CA/OR/WA.1
  • WA/OR/CA sablefish pot 309 Humpback whale, CA/OR/WA.1 WA coastal Dungeness crab pot 228 Gray whale, Eastern North Pacific.
  • Humpback whale, CA/OR/WA.1
  • LONGLINE/SET LINE FISHERIES: AK Bering Sea, Aleutian Islands Pacific cod longline 45 Dall's Porpoise, AK.
  • Killer whale, GOA, BSAI transient.1
  • Northern fur seal, Eastern Pacific.
  • Ringed seal, AK.
  • HI shallow-set longline * ^ 20 Blainville's beaked whale, HI.
  • Bottlenose dolphin, HI Pelagic.
  • False killer whale, HI Pelagic.1
  • Humpback whale, Central North Pacific.
  • Risso's dolphin, HI.
  • Rough-toothed dolphin, HI.
  • Short-finned pilot whale, HI.
  • Striped dolphin, HI.
  • American Samoa longline 2 22 Bottlenose dolphin, unknown. Cuvier's beaked whale, unknown. False killer whale, American Samoa. Rough-toothed dolphin, American Samoa. Short-finned pilot whale, unknown. HI shortline 2 9 None documented. HOOK-AND-LINE, HANDLINE, AND JIG FISHERIES: AK miscellaneous finfish handline/hand troll and mechanical jig 456 Fin whale, Northeast Pacific.
  • Humpback whale, Central North Pacific.
  • Humpback whale, Western North Pacific.1
  • CATEGORY III GILLNET FISHERIES: AK Kuskokwim, Yukon, Norton Sound, Kotzebue salmon gillnet 1,778 Harbor porpoise, Bering Sea. AK miscellaneous finfish set gillnet 54 Steller sea lion, Western U.S. AK Prince William Sound salmon set gillnet 29 Harbor seal, GOA.
  • Sea otter, South central AK.
  • Steller sea lion, Western U.S.
  • AK roe herring and food/bait herring gillnet 920 None documented. CA set gillnet (mesh size <3.5 in) 296 None documented. HI inshore gillnet 36 Bottlenose dolphin, HI.
  • Spinner dolphin, HI.
  • WA Grays Harbor salmon drift gillnet (excluding treaty Tribal fishing) 24 Harbor seal, OR/WA coast. WA/OR Mainstem Columbia River eulchon gillnet 15 None documented. WA/OR lower Columbia River (includes tributaries) drift gillnet 110 California sea lion, U.S.
  • Harbor seal, OR/WA coast.
  • WA Willapa Bay drift gillnet 82 Harbor seal, OR/WA coast.
  • Northern elephant seal, CA breeding.
  • MISCELLANEOUS NET FISHERIES: AK Cook Inlet salmon purse seine 83 Humpback whale, Central North Pacific. AK Kodiak salmon purse seine 376 Humpback whale, Central North Pacific. AK Southeast salmon purse seine 315 None documented in the most recent five years of data. AK Metlakatla salmon purse seine 10 None documented. AK miscellaneous finfish beach seine 2 None documented. AK miscellaneous finfish purse seine 2 None documented. AK octopus/squid purse seine 0 None documented. AK roe herring and food/bait herring beach seine 10 None documented. AK roe herring and food/bait herring purse seine 356 None documented. AK salmon beach seine 31 None documented. AK salmon purse seine (excluding salmon purse seine fisheries listed elsewhere) 936 Harbor seal, GOA.
  • Harbor seal, Prince William Sound.
  • WA/OR sardine purse seine 42 None documented. CA anchovy, mackerel, sardine purse seine 65 California sea lion, U.S.
  • Harbor seal, CA.
  • CA squid purse seine 80 Long-beaked common dolphin, CA.
  • Short-beaked common dolphin, CA/OR/WA.
  • CA tuna purse seine * 10 None documented. WA/OR Lower Columbia River salmon seine 10 None documented. WA/OR herring, smelt, squid purse seine or lampara 130 None documented. WA salmon purse seine 75 None documented. WA salmon reef net 11 None documented. HI lift net 17 None documented. HI inshore purse seine <3 None documented. HI throw net, cast net 23 None documented. HI seine net 24 None documented. DIP NET FISHERIES: CA squid dip net 115 None documented. MARINE AQUACULTURE FISHERIES: CA marine shellfish aquaculture unknown None documented. CA salmon enhancement rearing pen >1 None documented. CA white seabass enhancement net pens 13 California sea lion, U.S. HI offshore pen culture 2 None documented. WA salmon net pens 14 California sea lion, U.S.
  • Harbor seal, WA inland waters.
  • WA/OR shellfish aquaculture 23 None documented. TROLL FISHERIES: WA/OR/CA albacore surface hook and line/troll 705 None documented. CA halibut hook and line/handline unknown None documented. CA white seabass hook and line/handline unknown None documented. AK salmon troll 1,908 Steller sea lion, Eastern U.S.
  • Steller sea lion, Western U.S.
  • American Samoa tuna troll 13 None documented. CA/OR/WA salmon troll 4,300 None documented. HI troll 2,117 Pantropical spotted dolphin, HI. HI rod and reel 322 None documented. Commonwealth of the Northern Mariana Islands tuna troll 40 None documented. Guam tuna troll 432 None documented. LONGLINE/SET LINE FISHERIES: AK Bering Sea, Aleutian Islands rockfish longline 3 None documented. AK Bering Sea, Aleutian Islands Greenland turbot longline 4 Killer whale, AK resident. AK Bering Sea, Aleutian Islands sablefish longline 22 None documented. AK Gulf of Alaska halibut longline 855 None documented. AK Gulf of Alaska Pacific cod longline 92 Steller sea lion, Western U.S. AK Gulf of Alaska rockfish longline 25 None documented. AK Gulf of Alaska sablefish longline 295 Sperm whale, North Pacific. AK halibut longline/set line (state and Federal waters) 2,197 None documented in the most recent five years of data. AK octopus/squid longline 3 None documented. AK state-managed waters longline/setline (including sablefish, rockfish, lingcod, and miscellaneous finfish) 464 None documented. WA/OR/CA groundfish, bottomfish longline/set line 367 Bottlenose dolphin, CA/OR/WA offshore. WA/OR Pacific halibut longline 350 None documented. CA pelagic longline 1 None documented in the most recent five years of data. HI kaka line 15 None documented. HI vertical line 3 None documented. TRAWL FISHERIES: AK Bering Sea, Aleutian Islands Atka mackerel trawl 13 Ribbon seal, AK.
  • Steller sea lion, Western U.S.
  • AK Bering Sea, Aleutian Islands Pacific cod trawl 72 Ringed seal, AK.
  • Steller sea lion, Western U.S.
  • AK Gulf of Alaska flatfish trawl 36 Northern elephant seal, North Pacific. AK Gulf of Alaska Pacific cod trawl 55 Steller sea lion, Western U.S. AK Gulf of Alaska pollock trawl 67 Dall's porpoise, AK.
  • Fin whale, Northeast Pacific.
  • Northern elephant seal, North Pacific.
  • Steller sea lion, Western U.S.
  • AK Gulf of Alaska rockfish trawl 43 None documented. AK food/bait herring trawl 4 None documented. AK miscellaneous finfish otter/beam trawl 282 None documented. AK shrimp otter trawl and beam trawl (statewide and Cook Inlet) 38 None documented. AK state-managed waters of Cook Inlet, Kachemak Bay, Prince William Sound, Southeast AK groundfish trawl 2 None documented. CA halibut bottom trawl 47 California sea lion, U.S.
  • Harbor porpoise, unknown.
  • Harbor seal, unknown.
  • Northern elephant seal, CA breeding.
  • Steller sea lion, unknown.
  • CA sea cucumber trawl 16 None documented. WA/OR/CA shrimp trawl 300 None documented. WA/OR/CA groundfish trawl 160-180 California sea lion, U.S.
  • Dall's porpoise, CA/OR/WA.
  • Harbor seal, OR/WA coast.
  • Northern fur seal, Eastern Pacific.
  • Pacific white-sided dolphin, CA/OR/WA.
  • Steller sea lion, Eastern U.S.
  • POT, RING NET, AND TRAP FISHERIES: AK statewide miscellaneous finfish pot 4 None documented. AK Aleutian Islands sablefish pot 4 None documented. AK Bering Sea, Aleutian Islands Pacific cod pot 59 None documented. AK Bering Sea, Aleutian Islands crab pot 540 Gray whale, Eastern North Pacific. AK Bering Sea sablefish pot 2 None documented. AK Gulf of Alaska crab pot 381 None documented. AK Gulf of Alaska Pacific cod pot 128 Harbor seal, GOA. AK Southeast Alaska crab pot 41 Humpback whale, Central North Pacific (Southeast AK). AK Southeast Alaska shrimp pot 269 Humpback whale, Central North Pacific (Southeast AK). AK shrimp pot, except Southeast 236 None documented. AK octopus/squid pot 26 None documented. AK snail pot 1 None documented. CA/OR coonstripe shrimp pot 36 Gray whale, Eastern North Pacific.
  • Harbor seal, CA.
  • CA rock crab pot 124 Gray whale, Eastern North Pacific.
  • Harbor seal, CA.
  • CA spiny lobster 194 Bottlenose dolphin, CA/OR/WA offshore.
  • Humpback whale, CA/OR/WA.
  • Gray whale, Eastern North Pacific.
  • WA/OR/CA hagfish pot 54 None documented. WA/OR shrimp pot/trap 254 None documented. WA Puget Sound Dungeness crab pot/trap 249 None documented. HI crab trap 5 Humpback whale, Central North Pacific. HI fish trap 9 None documented. HI lobster trap <3 None documented in recent years. HI shrimp trap 10 None documented. HI crab net 4 None documented. HI Kona crab loop net 33 None documented. HOOK-AND-LINE, HANDLINE, AND JIG FISHERIES: AK North Pacific halibut handline/hand troll and mechanical jig 180 None documented. AK octopus/squid handline 7 None documented. American Samoa bottomfish 17 None documented. Commonwealth of the Northern Mariana Islands bottomfish 28 None documented. Guam bottomfish >300 None documented. HI aku boat, pole, and line <3 None documented. HI bottomfish handline 578 None documented in recent years. HI inshore handline 357 None documented. HI pelagic handline 534 None documented. WA groundfish, bottomfish jig 679 None documented. Western Pacific squid jig 0 None documented. HARPOON FISHERIES: CA swordfish harpoon 6 None documented. POUND NET/WEIR FISHERIES: AK herring spawn on kelp pound net 409 None documented. AK Southeast herring roe/food/bait pound net 2 None documented. HI bullpen trap 3 None documented. BAIT PENS: WA/OR/CA bait pens 13 California sea lion, U.S. DREDGE FISHERIES: Alaska scallop dredge 108 (5 AK) None documented. DIVE, HAND/MECHANICAL COLLECTION FISHERIES: AK abalone 0 None documented. AK clam 130 None documented. AK Dungeness crab 2 None documented. AK herring spawn on kelp 339 None documented. AK urchin and other fish/shellfish 398 None documented. HI black coral diving <3 None documented. HI fish pond 5 None documented. HI handpick 46 None documented. HI lobster diving 19 None documented. HI spearfishing 163 None documented. WA/CA kelp 4 None documented. WA/OR bait shrimp, clam hand, dive, or mechanical collection 201 None documented. OR/CA sea urchin, sea cucumber hand, dive, or mechanical collection 10 None documented. COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: AK/WA/OR/CA commercial passenger fishing vessel >7,000 (2,702 AK) Killer whale, unknown.
  • Steller sea lion, Eastern U.S.
  • Steller sea lion, Western U.S.
  • LIVE FINFISH/SHELLFISH FISHERIES: CA nearshore finfish live trap/hook-and-line 93 None documented. HI aquarium collecting 90 None documented. List of Abbreviations and Symbols Used in Table 1: AI—Aleutian Islands; AK—Alaska; BS—Bering Sea; CA—California; ENP—Eastern North Pacific; GOA—Gulf of Alaska; HI—Hawaii; MHI—Main Hawaiian Islands; OR—Oregon; WA—Washington; 1 Fishery classified based on mortalities and serious injuries of this stock, which are greater than or equal to 50 percent (Category I) or greater than 1 percent and less than 50 percent (Category II) of the stock's PBR; 2 Fishery classified by analogy; * Fishery has an associated high seas component listed in Table 3; ⁁ The list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of species and/or stocks killed or injured in high seas component of the fishery, minus species and/or stocks that have geographic ranges exclusively on the high seas. The species and/or stocks are found, and the fishery remains the same, on both sides of the EEZ boundary. Therefore, the EEZ components of these fisheries pose the same risk to marine mammals as the components operating on the high seas.
    Table 2—List of Fisheries—Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Fishery description Estimated number of vessels/ persons Marine mammal species and/or stocks incidentally killed or injured CATEGORY I GILLNET FISHERIES: Mid-Atlantic gillnet 3,950 Bottlenose dolphin, Northern Migratory coastal.1 Bottlenose dolphin, Southern Migratory coastal.1 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Southern NC estuarine system.1 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Gray seal, WNA. Harbor porpoise, GME/BF. Harbor seal, WNA. Harp seal, WNA. Humpback whale, Gulf of Maine. Minke whale, Canadian east coast. Risso's dolphin, WNA. White-sided dolphin, WNA. Northeast sink gillnet 4,332 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Fin whale, WNA. Gray seal, WNA. Harbor porpoise, GME/BF.1 Harbor seal, WNA. Harp seal, WNA. Hooded seal, WNA. Humpback whale, Gulf of Maine. Long-finned pilot whale, WNA. Minke whale, Canadian east coast. North Atlantic right whale, WNA. Risso's dolphin, WNA. White-sided dolphin, WNA. TRAP/POT FISHERIES: Northeast/Mid-Atlantic American lobster trap/pot 10,163 Humpback whale, Gulf of Maine.
  • Minke whale, Canadian east coast.
  • North Atlantic right whale, WNA.1
  • LONGLINE FISHERIES: Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline.* 420 Atlantic spotted dolphin, GMX continental and oceanic.
  • Bottlenose dolphin, Northern GMX oceanic.
  • Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Cuvier's beaked whale, WNA. False killer whale, WNA. Harbor porpoise, GME, BF. Kogia spp. (Pygmy or dwarf sperm whale), WNA. Long-finned pilot whale, WNA.1 Mesoplodon beaked whale, WNA. Minke whale, Canadian East coast. Pantropical spotted dolphin, Northern GMX. Pygmy sperm whale, GMX. Risso's dolphin, Northern GMX. Risso's dolphin, WNA. Short-finned pilot whale, Northern GMX. Short-finned pilot whale, WNA.1 CATEGORY II GILLNET FISHERIES: Chesapeake Bay inshore gillnet 2 248 Bottlenose dolphin, unknown (Northern migratory coastal or Southern migratory coastal). Gulf of Mexico gillnet 2 248 Bottlenose dolphin, GMX bay, sound, and estuarine.
  • Bottlenose dolphin, Northern GMX coastal.
  • Bottlenose dolphin, Western GMX coastal.
  • NC inshore gillnet 2,850 Bottlenose dolphin, Northern NC estuarine system.1
  • Bottlenose dolphin, Southern NC estuarine system.1
  • Northeast anchored float gillnet 2 852 Harbor seal, WNA.
  • Humpback whale, Gulf of Maine.
  • White-sided dolphin, WNA.
  • Northeast drift gillnet 2 1,036 None documented. Southeast Atlantic gillnet 2 273 Bottlenose dolphin, Central FL coastal.
  • Bottlenose dolphin, Northern FL coastal.
  • Bottlenose dolphin, SC/GA coastal.
  • Bottlenose dolphin, Southern migratory coastal.
  • Southeastern U.S. Atlantic shark gillnet 30 Bottlenose dolphin, unknown (Central FL, Northern FL, SC/GA coastal, or Southern migratory coastal).
  • North Atlantic right whale, WNA.
  • TRAWL FISHERIES: Mid-Atlantic mid-water trawl (including pair trawl) 382 Gray seal, WNA.
  • Harbor seal, WNA.
  • White-sided dolphin, WNA.1
  • Mid-Atlantic bottom trawl 785 Bottlenose dolphin, WNA offshore.
  • Common dolphin, WNA.1
  • Gray seal, WNA.
  • Harbor seal, WNA.
  • Risso's dolphin, WNA.1
  • Northeast mid-water trawl (including pair trawl) 1,087 Common dolphin, WNA.
  • Gray seal, WNA.
  • Harbor seal, WNA.
  • Long-finned pilot whale, WNA.1
  • Minke whale, Canadian East Coast.
  • Northeast bottom trawl 2,238 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Gray seal, WNA. Harbor porpoise, GME/BF. Harbor seal, WNA. Harp seal, WNA. Long-finned pilot whale, WNA. Risso's dolphin, WNA. White-sided dolphin, WNA.1 Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl 4,950 Atlantic spotted dolphin, GMX continental and oceanic. Bottlenose dolphin, Charleston estuarine system. Bottlenose dolphin, Eastern GMX coastal.1 Bottlenose dolphin, GMX bay, sound, estuarine.1 Bottlenose dolphin, GMX continental shelf. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, SC/GA coastal.1 Bottlenose dolphin, Southern migratory coastal. Bottlenose dolphin, Western GMX coastal.1 West Indian manatee, Florida. TRAP/POT FISHERIES: Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot 2 1,384 Bottlenose dolphin, Biscayne Bay estuarine.
  • Bottlenose dolphin, Central FL coastal.
  • Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, FL Bay. Bottlenose dolphin, GMX bay, sound, estuarine (FL west coast portion). Bottlenose dolphin, Indian River Lagoon estuarine system. Bottlenose dolphin, Jacksonville estuarine system. Bottlenose dolphin, Northern GMX coastal. Atlantic mixed species trap/pot 2 3,436 Fin whale, WNA.
  • Humpback whale, Gulf of Maine.
  • Atlantic blue crab trap/pot 7,714 Bottlenose dolphin, Central FL coastal.1 Bottlenose dolphin, Central GA estuarine system. Bottlenose dolphin, Charleston estuarine system.1 Bottlenose dolphin, Indian River Lagoon estuarine system.1 Bottlenose dolphin, Jacksonville estuarine system.1 Bottlenose dolphin, Northern FL coastal.1 Bottlenose dolphin, Northern GA/Southern SC estuarine system.1 Bottlenose dolphin, Northern Migratory coastal.1 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Northern SC estuarine system. Bottlenose dolphin, SC/GA coastal.1 Bottlenose dolphin, Southern GA estuarine system 1 Bottlenose dolphin, Southern Migratory coastal.1 Bottlenose dolphin, Southern NC estuarine system.1 West Indian manatee, FL.1 PURSE SEINE FISHERIES: Gulf of Mexico menhaden purse seine 40-42 Bottlenose dolphin, GMX bay, sound, estuarine.
  • Bottlenose dolphin, Mississippi Sound, Lake Borgne, Bay Boudreau.
  • Bottlenose dolphin, Northern GMX coastal.1
  • Bottlenose dolphin, Western GMX coastal.1
  • Mid-Atlantic menhaden purse seine 2 19 Bottlenose dolphin, Northern Migratory coastal.
  • Bottlenose dolphin, Southern Migratory coastal.
  • HAUL/BEACH SEINE FISHERIES: Mid-Atlantic haul/beach seine 359 Bottlenose dolphin, Northern Migratory coastal.1
  • Bottlenose dolphin, Northern NC estuarine system 1.
  • Bottlenose dolphin, Southern Migratory coastal.1
  • NC long haul seine 30 Bottlenose dolphin, Northern NC estuarine system.1
  • Bottlenose dolphin, Southern NC estuarine system.
  • STOP NET FISHERIES: NC roe mullet stop net 1 Bottlenose dolphin, Northern NC estuarine system.
  • Bottlenose dolphin, unknown (Southern migratory coastal or Southern NC estuarine system).
  • POUND NET FISHERIES: VA pound net 26 Bottlenose dolphin, Northern migratory coastal.
  • Bottlenose dolphin, Northern NC estuarine system.
  • Bottlenose dolphin, Southern Migratory coastal.1
  • CATEGORY III GILLNET FISHERIES: Caribbean gillnet >991 None documented in the most recent five years of data. DE River inshore gillnet unknown None documented in the most recent five years of data. Long Island Sound inshore gillnet unknown None documented in the most recent five years of data. RI, southern MA (to Monomoy Island), and NY Bight (Raritan and Lower NY Bays) inshore gillnet unknown None documented in the most recent five years of data. Southeast Atlantic inshore gillnet unknown Bottlenose dolphin, Northern SC estuarine system. TRAWL FISHERIES: Atlantic shellfish bottom trawl >58 None documented. Gulf of Mexico butterfish trawl 2 Bottlenose dolphin, Northern GMX oceanic.
  • Bottlenose dolphin, Northern GMX continental shelf.
  • Gulf of Mexico mixed species trawl 20 None documented. GA cannonball jellyfish trawl 1 Bottlenose dolphin, SC/GA coastal. MARINE AQUACULTURE FISHERIES: Finfish aquaculture 48 Harbor seal, WNA. Shellfish aquaculture unknown None documented. PURSE SEINE FISHERIES: Gulf of Maine Atlantic herring purse seine >7 Harbor seal, WNA.
  • Gray seal, WNA.
  • Gulf of Maine menhaden purse seine >2 None documented. FL West Coast sardine purse seine 10 Bottlenose dolphin, Eastern GMX coastal. U.S. Atlantic tuna purse seine * 5 Long-finned pilot whale, WNA.
  • Short-finned pilot whale, WNA.
  • LONGLINE/HOOK-AND-LINE FISHERIES: Northeast/Mid-Atlantic bottom longline/hook-and-line >1,207A None documented. Gulf of Maine, U.S. Mid-Atlantic tuna, shark swordfish hook-and-line/harpoon 428 Bottlenose dolphin, WNA offshore.
  • Humpback whale, Gulf of Maine.
  • Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean snapper-grouper and other reef fish bottom longline/hook-and-line >5,000 Bottlenose dolphin, GMX continental shelf. Southeastern U.S. Atlantic, Gulf of Mexico shark bottom longline/hook-and-line <125 Bottlenose dolphin, Eastern GMX coastal.
  • Bottlenose dolphin, Northern GMX continental shelf.
  • Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean pelagic hook-and-line/harpoon 1,446 None documented. U.S. Atlantic, Gulf of Mexico trotline unknown None documented. TRAP/POT FISHERIES: Caribbean mixed species trap/pot >501 None documented. Caribbean spiny lobster trap/pot >197 None documented. FL spiny lobster trap/pot 1,268 Bottlenose dolphin, Biscayne Bay estuarine
  • Bottlenose dolphin, Central FL coastal.
  • Bottlenose dolphin, Eastern GMX coastal.
  • Bottlenose dolphin, FL Bay estuarine.
  • Bottlenose dolphin, FL Keys.
  • Gulf of Mexico blue crab trap/pot 4,113 Bottlenose dolphin, Barataria Bay. Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, GMX bay, sound, estuarine. Bottlenose dolphin, Mississippi Sound, Lake Borgne, Bay Boudreau. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, Western GMX coastal. West Indian manatee, FL. Gulf of Mexico mixed species trap/pot unknown None documented. Southeastern U.S. Atlantic, Gulf of Mexico golden crab trap/pot 10 None documented. U.S. Mid-Atlantic eel trap/pot unknown None documented. STOP SEINE/WEIR/POUND NET/FLOATING TRAP/FYKE NET FISHERIES: Gulf of Maine herring and Atlantic mackerel stop seine/weir >1 Harbor porpoise, GME/BF.
  • Harbor seal, WNA.
  • Minke whale, Canadian east coast.
  • Atlantic white-sided dolphin, WNA.
  • U.S. Mid-Atlantic crab stop seine/weir 2,600 None documented. U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the NC roe mullet stop net) unknown Bottlenose dolphin, Northern NC estuarine system. RI floating trap 9 None documented. Northeast and Mid-Atlantic fyke net unknown None documented. DREDGE FISHERIES: Gulf of Maine sea urchin dredge unknown None documented. Gulf of Maine mussel dredge unknown None documented. Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge >403 None documented. Mid-Atlantic blue crab dredge unknown None documented. Mid-Atlantic soft-shell clam dredge unknown None documented. Mid-Atlantic whelk dredge unknown None documented. U.S. Mid-Atlantic/Gulf of Mexico oyster dredge 7,000 None documented. New England and Mid-Atlantic offshore surf clam/quahog dredge unknown None documented. HAUL/BEACH SEINE FISHERIES: Caribbean haul/beach seine 15 None documented in the most recent five years of data. Gulf of Mexico haul/beach seine unknown None documented. Southeastern U.S. Atlantic haul/beach seine 25 None documented. DIVE, HAND/MECHANICAL COLLECTION FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean shellfish dive, hand/mechanical collection 20,000 None documented. Gulf of Maine urchin dive, hand/mechanical collection unknown None documented. Gulf of Mexico, Southeast Atlantic, Mid-Atlantic, and Caribbean cast net unknown None documented. COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel 4,000 Bottlenose dolphin, Biscayne Bay estuarine.
  • Bottlenose dolphin, Central FL coastal.
  • Bottlenose dolphin, Choctawhatchee Bay. Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, FL Bay. Bottlenose dolphin, GMX bay, sound, estuarine. Bottlenose dolphin, Indian River Lagoon estuarine system. Bottlenose dolphin, Jacksonville estuarine system. Bottlenose dolphin, Northern FL coastal. Bottlenose dolphin, Northern GA/Southern SC estuarine. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, Northern migratory coastal. Bottlenose dolphin, Northern NC estuarine. Bottlenose dolphin, Southern migratory coastal. Bottlenose dolphin, Southern NC estuarine system. Bottlenose dolphin, Southern SC/GA coastal. Bottlenose dolphin, Western GMX coastal. List of Abbreviations and Symbols Used in Table 2: DE—Delaware; FL—Florida; GA—Georgia; GME/BF—Gulf of Maine/Bay of Fundy; GMX—Gulf of Mexico; MA—Massachusetts; NC—North Carolina; NY—New York; RI—Rhode Island; SC—South Carolina; VA—Virginia; WNA—Western North Atlantic; 1 Fishery classified based on mortalities and serious injuries of this stock, which are greater than or equal to 50 percent (Category I) or greater than 1 percent and less than 50 percent (Category II) of the stock's PBR; 2 Fishery classified by analogy; * Fishery has an associated high seas component listed in Table 3.
    Table 3—List of Fisheries—Commercial Fisheries on the High Seas Fishery description Number of HSFCA permits Marine mammal species and/or stocks incidentally killed or injured Category I LONGLINE FISHERIES: Atlantic Highly Migratory Species * 86 Atlantic spotted dolphin, WNA. Bottlenose dolphin, Northern GMX oceanic. Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Cuvier's beaked whale, WNA. False killer whale, WNA. Killer whale, GMX oceanic. Kogia spp. whale (Pygmy or dwarf sperm whale), WNA. Long-finned pilot whale, WNA. Mesoplodon beaked whale, WNA. Minke whale, Canadian East coast. Pantropical spotted dolphin, WNA. Risso's dolphin, GMX. Risso's dolphin, WNA. Short-finned pilot whale, WNA. Western Pacific Pelagic (HI Deep-set component) * ^ 139 Bottlenose dolphin, HI Pelagic. False killer whale, HI Pelagic. Pygmy killer whale, HI. Risso's dolphin, HI. Short-finned pilot whale, HI. Sperm whale, HI. Striped dolphin, HI. DRIFT GILLNET FISHERIES: Pacific Highly Migratory Species ^ 5 Long-beaked common dolphin, CA. Humpback whale, CA/OR/WA. Northern right-whale dolphin, CA/OR/WA. Pacific white-sided dolphin, CA/OR/WA. Risso's dolphin, CA/OR/WA. Short-beaked common dolphin, CA/OR/WA. Category II DRIFT GILLNET FISHERIES: Atlantic Highly Migratory Species 0 Undetermined. TRAWL FISHERIES: Atlantic Highly Migratory Species ** 1 Undetermined. CCAMLR 0 Antarctic fur seal. PURSE SEINE FISHERIES: South Pacific Tuna Fisheries 38 Undetermined. Western Pacific Pelagic 3 Undetermined. LONGLINE FISHERIES: CCAMLR 0 None documented. South Pacific Albacore Troll 10 Undetermined. South Pacific Tuna Fisheries ** 2 Undetermined. Western Pacific Pelagic (HI Shallow-set component) * ^ 20 Blainville's beaked whale, HI. Bottlenose dolphin, HI Pelagic. False killer whale, HI Pelagic. Humpback whale, Central North Pacific. Northern elephant seal, CA breeding. Risso's dolphin, HI. Rough-toothed dolphin, HI. Short-beaked common dolphin, CA/OR/WA. Short-finned pilot whale, HI. Striped dolphin, HI. HANDLINE/POLE AND LINE FISHERIES: Atlantic Highly Migratory Species 3 Undetermined. Pacific Highly Migratory Species 46 Undetermined. South Pacific Albacore Troll 7 Undetermined. Western Pacific Pelagic 2 Undetermined. TROLL FISHERIES: Atlantic Highly Migratory Species 2 Undetermined. South Pacific Albacore Troll 30 Undetermined. South Pacific Tuna Fisheries ** 4 Undetermined. Western Pacific Pelagic 17 Undetermined. Category III LONGLINE FISHERIES: Northwest Atlantic Bottom Longline 1 None documented. Pacific Highly Migratory Species * ^ 114 None documented in the most recent 5 years of data. PURSE SEINE FISHERIES: Pacific Highly Migratory Species * ^ 6 None documented. TRAWL FISHERIES: Northwest Atlantic 1 None documented. TROLL FISHERIES: Pacific Highly Migratory Species * 187 None documented. List of Terms, Abbreviations, and Symbols Used in Table 3: CA—California; GMX—Gulf of Mexico; HI—Hawaii; OR—Oregon; WA—Washington; WNA—Western North Atlantic. * Fishery is an extension/component of an existing fishery operating within U.S. waters listed in Table 1 or 2. The number of permits listed in Table 3 represents only the number of permits for the high seas component of the fishery. ** These gear types are not authorized under the Pacific HMS FMP (2004), the Atlantic HMS FMP (2006), or without a South Pacific Tuna Treaty license (in the case of the South Pacific Tuna fisheries). Because HSFCA permits are valid for five years, permits obtained in past years exist in the HSFCA permit database for gear types that are now unauthorized. Therefore, while HSFCA permits exist for these gear types, it does not represent effort. In order to land fish species, fishers must be using an authorized gear type. Once these permits for unauthorized gear types expire, the permit-holder will be required to obtain a permit for an authorized gear type. ^ The list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of marine mammal species and/or stocks killed or injured in U.S. waters component of the fishery, minus species and/or stocks that have geographic ranges exclusively in coastal waters, because the marine mammal species and/or stocks are also found on the high seas and the fishery remains the same on both sides of the EEZ boundary. Therefore, the high seas components of these fisheries pose the same risk to marine mammals as the components of these fisheries operating in U.S. waters. Table 4—Fisheries Affected by Take Reduction Teams and Plans Take reduction plans Affected fisheries Atlantic Large Whale Take Reduction Plan (ALWTRP)—50 CFR 229.32 Category I:
  • Mid-Atlantic gillnet.
  • Northeast/Mid-Atlantic American lobster trap/pot. Northeast sink gillnet. Category II: Atlantic blue crab trap/pot. Atlantic mixed species trap/pot. Northeast anchored float gillnet. Northeast drift gillnet. Southeast Atlantic gillnet. Southeastern U.S. Atlantic shark gillnet *. Southeastern, U.S. Atlantic, Gulf of Mexico stone crab trap/pot.^ Bottlenose Dolphin Take Reduction Plan (BDTRP)—50 CFR 229.35 Category I:
  • Mid-Atlantic gillnet.
  • Category II: Atlantic blue crab trap/pot. Chesapeake Bay inshore gillnet fishery. Mid-Atlantic haul/beach seine. Mid-Atlantic menhaden purse seine. NC inshore gillnet. NC long haul seine. NC roe mullet stop net. Southeast Atlantic gillnet. Southeastern U.S. Atlantic shark gillnet. Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl ^. Southeastern, U.S. Atlantic, Gulf of Mexico stone crab trap/pot ^. VA pound net. False Killer Whale Take Reduction Plan (FKWTRP)—50 CFR 229.37 Category I:
  • HI deep-set longline.
  • Category II: HI shallow-set longline. Harbor Porpoise Take Reduction Plan (HPTRP)—50 CFR 229.33 (New England) and 229.34 (Mid-Atlantic) Category I:
  • Mid-Atlantic gillnet.
  • Northeast sink gillnet.
  • Pelagic Longline Take Reduction Plan (PLTRP)—50 CFR 229.36 Category I:
  • Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline.
  • Pacific Offshore Cetacean Take Reduction Plan (POCTRP)—50 CFR 229.31 Category I:
  • CA thresher shark/swordfish drift gillnet (≥14 in mesh).
  • Atlantic Trawl Gear Take Reduction Team (ATGTRT) Category II:
  • Mid-Atlantic bottom trawl.
  • Mid-Atlantic mid-water trawl (including pair trawl).
  • Northeast bottom trawl.
  • Northeast mid-water trawl (including pair trawl).
  • * Only applicable to the portion of the fishery operating in U.S. waters; ^ Only applicable to the portion of the fishery operating in the Atlantic Ocean.
    Classification

    The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule would not have a significant economic impact on a substantial number of small entities. On June 12, 2014, the SBA issued a final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647). The rule increased the size standard for Finfish Fishing from $19.0 to $20.5 million, Shellfish Fishing from $5.0 to $5.5 million, and Other Marine Fishing from $7.0 to $7.5 million. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities; thus, they all would continue to be considered small under the new standards.

    Under existing regulations, all individuals participating in Category I or II fisheries must register under the MMPA and obtain an Authorization Certificate. The Authorization Certificate authorizes the taking of non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Additionally, individuals may be subject to a TRP and requested to carry an observer. NMFS has estimated that up to approximately 58,500 fishing vessels, most with annual revenues below the SBA's small entity thresholds, may operate in Category I or II fisheries. As fishing vessels operating in Category I or II fisheries, they are required to register with NMFS. Forty-five fishing vessels are new to Category II as a result of this proposed rule. The MMPA registration process is integrated with existing state and Federal licensing, permitting, and registration programs. Therefore, individuals who have a state or Federal fishing permit or landing license, or who are authorized through another related state or Federal fishery registration program, are currently not required to register separately under the MMPA or pay the $25 registration fee. Therefore, this proposed rule would not impose any direct costs on small entities. Record keeping and reporting costs associated with this rulemaking are minimal and would not have a significant impact on a substantial number of small entities.

    If a vessel is requested to carry an observer, vessels will not incur any direct economic costs associated with carrying that observer. In addition, section 118 of the MMPA states that an observer is not required to be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe, thereby exempting vessels too small to accommodate an observer from this requirement. As a result of this certification, an initial regulatory flexibility analysis is not required and has not been prepared. In the event that reclassification of a fishery to Category I or II results in a TRP, economic analyses of the effects of that TRP would be summarized in subsequent rulemaking actions.

    This proposed rule contains collection-of-information (COI) requirements subject to the Paperwork Reduction Act. The COI for the registration of individuals under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.15 hours per report for new registrants). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the COI. Send comments regarding these reporting burden estimates or any other aspect of the COI, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES and SUPPLEMENTARY INFORMATION).

    Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a COI subject to the requirements of the Paperwork Reduction Act unless that COI displays a currently valid OMB control number.

    This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

    An environmental assessment (EA) was prepared under the NEPA in 1995 and 2005. The 1995 EA examined the effects of regulations implementing section 118 of the 1994 Amendments of the MMPA on the affected environment. The 2005 EA analyzed the environmental impacts of continuing the existing scheme (as described in the 1995 EA) for classifying fisheries on the LOF. The 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. NMFS reviewed the 2005 EA in 2009. NMFS concluded that because there were no changes to the process used to develop the LOF and implement section 118 of the MMPA, there was no need to update the 2005 EA. This rule would not change NMFS's current process for classifying fisheries on the LOF; therefore, this rule is not expected to change the analysis or conclusion of the 2005 EA and Finding of No Significant Impact (FONSI), and no update is needed. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an environmental document, as required under NEPA, specific to that action.

    This proposed rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.

    This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.

    This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

    References Allen, B.M. and R.P. Angliss, editors. 2016. Alaska Marine Mammal Stock Assessments, 2015. NOAA Tech. Memo. NMFS-AFSC-323. 309 p. Carretta, J.V., K.A. Forney, E. Oleson, K Martien, M.M. Muto, M.S. Lowry, J. Barlow, J. Baker, B. Hanson, D. Lynch, L. Carswell, R.L. Brownell Jr., J. Roobins, D.K. Mattila, K. Ralls and M.C. Hill. 2011. U.S. Pacific Marine Mammal Stock Assessments: 2010. NOAA Technical Memorandum NOAA-TM-NMFS-SWFSC-476. 357 p. Carretta, J.V., E. Oleson, D.W. Weller, A.R. Lang, K.A. Forney, J. Baker, B. Hanson, K Martien, M.M. Muto, A.J. Orr, H. Huber, M.S. Lowry, J. Barlow, D. Lynch, L. Carswell, R.L. Brownell Jr., and D.K. Mattila. 2014. U.S. Pacific Marine Mammal Stock Assessments: 2013. NOAA Technical Memorandum NOAA-TM-NMFS-SWFSC-532. 414 p. Carretta, J.V., E. Oleson, D.W. Weller, A.R. Lang, K.A. Forney, J. Baker, B. Hanson, K Martien, M.M. Muto, M.S. Lowry, J. Barlow, D. Lynch, L. Carswell, R.L. Brownell Jr., D.K. Mattila, and M.C. Hill. 2016. U.S. Pacific Marine Mammal Stock Assessments: 2015. NOAA Technical Memorandum NOAA-TM-NMFS-SWFSC-561. 426 p. Carretta, J.V., M.M. Muto, S. Wilkin, J. Greenman, K. Wilkinson, M. DeAngelis, J. Viezbicke, and J. Jannot. 2016. Sources of human-related injury and mortality for U.S. Pacific west coast marine mammal stocks assessments, 2010-2014. NOAA-TM-NMFS-SWFSC-554. Fishing Gear Types. Fyke nets. Technology Fact Sheets. In: FAO Fisheries and Aquaculture Department [online]. Rome. Updated 13 September 2001. [Cited 16 March 2016]. http://www.fao.rog/fishery/geartype/226/en. Fullencamp, L. 2006. Characterization of fisheries operating in State Waters of the Atlantic Ocean from Maine through Florida. Atlantic States Fisheries Marine Commission. Gilbert, J.R. and K. M. Wynne. 1985. Harbor seal populations and fisheries interactions with marine mammals in New England, 1984. Interim Rep., NOAA NA-84-EAC-00070, to NMFS, Northeast Fisheries Science Center, 166 Water St., Woods Hole, MA. 15 p. Jannot, J.E., V. Tuttle, K. Somers, Y-W. Lee, J. McVeigh. 2016. Marine Mammal, Seabird, and Sea Turtle Summary of Observed Interactions, 2002-2014. Fisheries Observation Science, Fishery Resource Analysis and Monitoring Division, Northwest Fisheries Science Center. McCracken, M.L. 2014. Assessment of Incidental Interactions with Marine Mammals in the Hawaii Deep and Shallow Set Fisheries from 2008 through 2012. NMFS Pacific Islands Fisheries Science Center, PIFSC Internal Report IR-14-006. 1 p. + Excel spreadsheet. NMFS (National Marine Fisheries Service). 2004. Evaluating bycatch: a national approach to standardized bycatch monitoring programs. U.S. Dep. Commer., NOAA Tech. Memo. NMFSF/SPO-66, 108 p. On-line version, http://spo.nmfs.noaa.gov/tm. National Marine Fisheries Service. 2012. National Marine Fisheries Service Policy Directive 02-238. Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals, 4 p. (Available at: http://www.nmfs.noaa.gov/op/pds/documents/02/02-238.pdf). Stevenson, D., L. Chiarella, D. Stephan, R. Reid, K. Wilhelm, J. McCarthy, and M. Pentony. 2004. Characterization of the Fishing Practices and Marine Benthic Ecosystems of the Northeast U.S. Shelf, and an Evaluation of the Potential Effects of Fishing on Essential Fish Habitat. NOAA Technical Memorandum NMFS-NE-181. Waring, G.T., E. Josephson, C.P. Fairfield and K. Maze-Foley, editors. 2006. U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2005. NOAA Technical Memorandum NOAA-NE-194. Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 2015. U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2014. NOAA Technical Memorandum NOAA-NE-231. 355 p. Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 2016. U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2015. NOAA Technical Memorandum NOAA-NE-238. 512 p. Dated: August 9, 2016. Paul Doremus, Deputy Assistant Administrator for Operations, National Marine Fisheries Service.
    [FR Doc. 2016-19346 Filed 8-12-16; 8:45 am] BILLING CODE 3510-22-P
    81 157 Monday, August 15, 2016 Notices DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [8/5/2016 through 8/9/2016] Firm name Firm address Date accepted for investigation Product(s) Omaha Steel Castings Company, LLC 912 East 12th Street, Wahoo, NE 68066 8/8/2016 The firm custom designs and manufactures industrial related alloy and carbon steel components. Little Lady Foods, Inc 2323 Pratt Boulevard, Elk Grove Village, IL 60007 8/9/2016 The firm creates custom food products and baked goods. On Plan Solutions, LLC 10000 NE. 7th Avenue, Suite 300i, Vancouver, WA 98685 8/9/2016 On Plan Solutions is a consulting service for Oracle applications.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-19288 Filed 8-12-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-112-2016] Foreign-Trade Zone 92—Gulfport, Mississippi; Application for Expansion of Subzone 92B; Huntington Ingalls Industries; Pascagoula, Mississippi

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Mississippi Coast Foreign Trade Zone, Inc., grantee of FTZ 92, requesting an expansion of Subzone 92B on behalf of Huntington Ingalls Industries. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on August 9, 2016.

    Subzone 92B was approved on January 17, 1991 (Board Order 506, 56 FR 2740, January 24, 1991) and consists of one site (794 acres) located on the east and west banks of the East Pascagoula River in the City of Pascagoula, some 3 miles south of the US Highway 90 bridge and 12 miles from the Gulf of Mexico. The applicant is requesting authority to expand the subzone to include an additional site: Proposed Site 2 (12.18 acres)—3800 Richard Street in Pascagoula. The existing subzone and the proposed site would be subject to the existing activation limit of FTZ 92. No additional authorization for production activity has been requested at this time.

    In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the FTZ Board.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is September 26, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 11, 2016.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz. For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: August 9, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-19412 Filed 8-12-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-983] Drawn Stainless Steel Sinks From the People's Republic of China; Final Results of Antidumping Duty Administrative Review; Final Determination of No Shipments; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On May 12, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on drawn stainless steel sinks from the People's Republic of China. We invited interested parties to comment but received no comments or requests for a hearing. Therefore, the final results remain unchanged from the preliminary results.

    DATES:

    Effective August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Smith or Brandon Custard, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766, or (202) 482-1823, respectively.

    SUPPLEMENTARY INFORMATION:

    On May 12, 2016, the Department published the Preliminary Results. 1 The POR is April 1, 2014, through March 31, 2015. We invited interested parties to comment on the Preliminary Results. We received no comments or requests for a hearing. The Department conducted this administrative review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act).

    1See Drawn Stainless Steel Sinks From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2014-2015, 81 FR 29528 (May 12, 2016) (Preliminary Results).

    Scope of the Order

    The products covered by the order include drawn stainless steel sinks. Imports of subject merchandise are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 7324.10.000 and 7324.10.0010. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise within the scope is dispositive.2

    2 For a complete description of the scope of the order, see the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, entitled, “Decision Memorandum for the Preliminary Results of the 2014-2015 Administrative Review: Drawn Stainless Steel Sinks from the People's Republic of China,” (Preliminary Decision Memorandum), dated May 5, 2016, which can be accessed directly at http://enforcement.trade.gov/frn/.

    Final Results of Review and Final Determination of No Shipments

    As noted above, the Department received no comments concerning the Preliminary Results on the record of this segment of the proceeding. As there are no changes from, or comments upon, the Preliminary Results, the Department finds that there is no reason to modify its analysis. Thus, we continue to find that sales of subject merchandise by Guangdong Dongyuan Kitchenware Industrial Co., Ltd. (Dongyuan) were made at less than normal value (NV) during the POR. We also continue to grant separate rates to Feidong Import and Export Co., Ltd. and Ningbo Afa Kitchen and Bath Co., Ltd. Further, we continue to find that B&R Industries Limited, Zhongshan Newecan Enterprise Development Corporation, and Zhongshan Superte Kitchenware Co., Ltd./Superte invoiced as Foshan Zhaoshun Trade Co., Ltd., Shunde Foodstuffs J&C Industries Enterprise Limited, Foshan Shunde MingHao Kitchen Utensils Co., Ltd., Franke Asia Sourcing Ltd., Grand Hill Work Company, Hangzhou Heng's Industries Co., Ltd., Jiangmen Hongmao Trading Co;, Ltd., Jiangxi Zoje Kitchen & Bath Industry Co., Ltd., Ningbo Oulin Kitchen Utensils Co., Ltd. and Shunde Foodstuffs Import & Export Company Limited of Guangdong are part of the PRC-wide entity and will receive the rate of that entity. Finally, we continue to find that Kehuaxing Industrial Ltd. (Kehuaxing) made no shipments of subject merchandise during the POR. Accordingly, no decision memorandum accompanies this Federal Register notice. For further details of the issues addressed in this segment of the proceeding, see the Preliminary Results and the accompanying Preliminary Decision Memorandum. The final weighted-average dumping margins for the period April 1, 2014, through March 31, 2015 are as follows:

    Producer/exporter Weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Guangdong Dongyuan Kitchenware Industrial Co., Ltd 1.65 Ningbo Afa Kitchen and Bath Co., Ltd * 1.65 Feidong Import and Export Co., Ltd * 1.65 * These companies demonstrated that they qualified for a separate rate in this administrative review. As we did in the Preliminary Results, and consistent with the Department's practice, we continue to assign them the rate calculated for the mandatory respondent in this review.
    Assessment Rates

    Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b), the Department determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this administrative review.

    For Dongyuan, which has a weighted-average dumping margin which is not zero or de minimis (i.e., less than 0.5 percent), we calculated importer- (or customer-) specific per-unit duty assessment rates based on the ratio of the total amount of dumping calculated for the importer's (or customer's) examined sales to the total sales quantity associated with those sales, in accordance with 19 CFR 351.212(b)(1). Where an importer- (or customer-) specific assessment rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.

    For the respondents which were not selected for individual examination in this administrative review and which qualified for a separate rate, the assessment rate is equal to the weighted-average dumping margin assigned to Dongyuan, or 1.65 percent.

    For the companies identified above as part of the PRC-wide entity, we will instruct CBP to apply an ad valorem assessment rate of 76.45 3 percent to all entries of subject merchandise during the POR which were produced and/or exported by those companies.

    3 The PRC-wide rate determined in the investigation was 76.53 percent. See Drawn Stainless Steel Sinks from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 78 FR 21592, 21594 (April 11, 2013). This rate was adjusted for export subsidies and estimated domestic subsidy pass through to determine the cash deposit rate (76.45 percent) collected for companies in the PRC-wide entity. See explanation in Drawn Stainless Steel Sinks From the People's Republic of China: Investigation, Final Determination, 78 FR 13019, 13025 (February 26, 2013).

    The Department has refined its assessment practice in NME cases. Pursuant to this refinement in practice, for entries that were not reported in the U.S. sales databases submitted by Dongyuan, the Department will instruct CBP to liquidate such entries at the PRC-wide rate. In addition, because the Department determined that Kehuaxing had no shipments of the subject merchandise, any suspended entries that entered under Kehuaxing's rate will be liquidated at the PRC-wide rate.4

    4 For a full discussion of this practice, see Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011) (NME Antidumping Proceedings).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that rate established in the final results of this review (except, if the rate is zero or de minimis, then a cash deposit rate of zero will be established for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the PRC-wide entity, which is 76.45 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Reimbursement of Duties

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: August 5, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-19264 Filed 8-12-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-475-820, A-588-843, A-580-829, A-469-807, A-583-828] Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan: Continuation and Revocation of Antidumping Duty Orders AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce

    SUMMARY:

    As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping (AD) duty orders on stainless steel wire rod (SSWR) from Japan, the Republic of Korea (Korea), and Taiwan would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation of the antidumping duty orders. In addition, as a result of the ITC's determination that revocation of the AD duty orders on SSWR from Italy and Spain is not likely to lead to continuation or recurrence of material injury to an industry in the United States, the Department is revoking the AD orders on SSWR from Italy and Spain.

    DATES:

    AD Revocation (Italy and Spain): Effective June 17, 2015; AD Continuation (Japan, Korea, and Taiwan): Effective August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    David Crespo, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3693.

    SUPPLEMENTARY INFORMATION: Background

    On September 15, 1998, the Department published the AD orders on SSWR from Japan, Italy, Korea, Spain, and Taiwan.1 On May 1, 2015, the Department initiated 2 and the ITC instituted 3 five-year (“sunset”) reviews of the AD orders on SSWR from Japan, Italy, Korea, Spain, and Taiwan, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). As a result of its reviews, the Department determined that revocation of the AD orders on SSWR from Japan, Italy, Korea, Spain, and Taiwan would likely lead to continuation or recurrence of dumping and notified the ITC of the magnitude of the margins of dumping likely to prevail were the orders revoked.4

    1See Notice of Antidumping Duty Order: Stainless Steel Wire Rod from Italy, 63 FR 49327 (September 15, 1998); Notice of Antidumping Duty Order: Stainless Steel Wire Rod from Japan, 63 FR 49328 (September 15, 1998); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Wire Rod from Korea, 63 FR 49331 (September 15, 1998), as amended by Stainless Steel Wire Rod From Korea: Amendment of Final Determination of Sales at Less Than Fair Value Pursuant to Court Decision, 66 FR 41550 (August 8, 2001); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Wire Rod from Spain, 63 FR 49330 (September 15, 1998); and Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Wire Rod from Taiwan, 63 FR 49332 (September 15, 1998).

    2See Initiation of Five-Year (“Sunset”) Review, 80 FR 24900 (May 1, 2015).

    3See Stainless Steel Wire Rod From Italy, Japan, Korea, Spain, and Taiwan; Institution of Five-Year Reviews, 80 FR 24970 (May 1, 2015).

    4See Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan: Final Results of the Expedited Sunset Reviews of the Antidumping Duty Orders, 80 FR 59733 (October 2, 2015).

    On July 29, 2016, the ITC published its determinations, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the AD orders on SSWR from Japan, Korea, and Taiwan would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time, but that revocation of the AD orders on SSWR from Italy and Spain would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.5

    5See Stainless Steel Wire Rod from Italy, Japan, Korea, Spain, and Taiwan; Determination, 81 FR 50011 (July 29, 2016).

    Scope of the Orders

    The merchandise covered by these orders is SSWR, which comprises products that are hot-rolled or hot-rolled annealed and/or pickled and/or descaled rounds, squares, octagons, hexagons or other shapes, in coils, that may also be coated with a lubricant containing copper, lime, or oxalate. SSWR is made of alloy steels containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. These products are manufactured only by hot-rolling or hot-rolling, annealing, and/or pickling and/or descaling, are normally sold in coiled form, and are of solid cross-section. The majority of SSWR sold in the United States is round in cross-sectional shape, annealed and pickled, and later cold-finished into stainless steel wire or small-diameter bar.

    The most common size for such products is 5.5 millimeters or 0.217 inches in diameter, which represents the smallest size that normally is produced on a rolling mill and is the size that most wire-drawing machines are set up to draw. The range of SSWR sizes normally sold in the United States is between 0.20 inches and 1.312 inches diameter. Two stainless steel grades, SF20T and K-M35FL, are excluded from the scope of the orders. The chemical makeup for the excluded grades is as follows:

    SF20T Carbon 0.05 max Chromium 19.00/21.00 Manganese 2.00 max Molybdenum 1.50/2.50 Phosphorous 0.05 max Lead added (0.10/0.30) Sulfur 0.15 max Tellurium added (0.03 min) Silicon 1.00 max K-M35FL Carbon 0.015 max Nickel 0.30 max Silicon 0.70/1.00 Chromium 12.50/14.00 Manganese 0.40 max Lead 0.10/0.30 Phosphorous 0.04 max Aluminum 0.20/0.35 Sulfur 0.03 max

    The products subject to these orders are currently classifiable under subheadings 7221.00.0005, 7221.00.0015, 7221.00.0030, 7221.00.0045, and 7221.00.0075 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.

    Continuation of the AD Orders on SSWR From Japan, Korea, and Taiwan

    As a result of the determinations by the Department and the ITC that revocation of the AD orders on SSWR from Japan, Korea, and Taiwan would likely lead to a continuation or a recurrence of dumping and of material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the AD orders on SSWR from Japan, Korea, and Taiwan. U.S. Customs and Border Protection (CBP) will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the orders will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of these orders not later than 30 days prior to the fifth anniversary of the effective date of continuation.

    Revocation of the AD Orders on SSWR From Italy and Spain

    As a result of the determination by the ITC that revocation of the AD orders on SSWR from Italy and Spain would not be likely to lead to continuation or recurrence of material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department is revoking the AD orders on SSWR from Italy and Spain. Pursuant to section 751(d)(2) of the Act and 19 CFR 351.222(i)(2)(i), the effective date of revocation is June 17, 2015 (i.e., the fifth anniversary of the date of publication in the Federal Register of the notice of continuation of the antidumping duty orders).6

    6See Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan: Continuation of Antidumping Duty Orders, 75 FR at 34424 (June 17, 2010).

    Cash Deposits and Assessment of Duties on SSWR From Italy and Spain

    The Department will notify CBP, 15 days after publication of this notice, to terminate the suspension of liquidation and to discontinue the collection of cash deposits on entries of SSWR from Italy and Spain, entered or withdrawn from warehouse, on or after June 17, 2015. The Department will further instruct CBP to refund with interest all cash deposits on unliquidated entries made on or after June 17, 2015. Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and AD deposit requirements and assessments. The Department will complete any pending or requested administrative reviews of this order covering entries prior to June 17, 2015.

    Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.

    These five-year (sunset) reviews and notice are in accordance with sections 751(c) and (d)(2), and 777(i) the Act, and 19 CFR 351.218(f)(4).

    Dated: August 5, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-19256 Filed 8-12-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-985] Xanthan Gum From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Determination of No Shipments, and Preliminary Partial Rescission of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In response to requests from interested parties, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on xanthan gum from the People's Republic of China (“PRC”). The period of review (“POR”) is July 1, 2014, through June 30, 2015. The Department preliminarily: Found that mandatory respondent Neimenggu Fufeng Biotechnologies Co., Ltd. (aka Inner Mongolia Fufeng Biotechnologies Co., Ltd.)/Shandong Fufeng Fermentation Co., Ltd./Xinjiang Fufeng Biotechnologies Co., Ltd. (“Fufeng”) did not make sales of subject merchandise in the United States at prices below normal value (“NV”) during the POR; applied total adverse facts available to A.H.A. International Co., Ltd. and Deosen Biochemical Ltd./Deosen Biochemical (Ordos) Ltd. (“Deosen”); granted separate rates to CP Kelco (Shandong) Biological Company Limited and Shanghai Smart Chemicals Co., Ltd.; included Hebei Xinhe Biochemical Co., Ltd. as part of the PRC-wide entity; and determined that three companies, Meihua Group International Trading (Hong Kong) Limited; Langfang Meihua Bio-Technology Co., Ltd.; and Xinjiang Meihua Amino Acid Co., Ltd., had no reviewable U.S. sales during the POR. Additionally, the Department is preliminarily rescinding this administrative review with respect to Inner Mongolia Jianlong Biochemical Co., Ltd (“Inner Mongolia Jianlong”). If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results.

    DATES:

    Effective August 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Erin Kearney or Andrew Martinez, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0167 or (202) 482-3627, respectively.

    SUPPLEMENTARY INFORMATION: Background

    The Department published the notice of initiation of this administrative review on September 2, 2015.1 For a complete description of the events that followed the initiation of this administrative review, see the Preliminary Decision Memorandum hereby adopted by this notice.2

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 53106 (September 2, 2015) (“Initiation Notice”).

    2See “Decision Memorandum for the Preliminary Results of the Second Antidumping Duty Administrative Review of Xanthan Gum from the People's Republic of China,” (“Preliminary Decision Memorandum”), dated concurrently with this notice.

    Scope of the Order

    The scope of the order covers dry xanthan gum, whether or not coated or blended with other products. Further, xanthan gum is included in this order regardless of physical form, including, but not limited to, solutions, slurries, dry powders of any particle size, or unground fiber. Merchandise covered by the scope of this order is classified in the Harmonized Tariff Schedule of the United States at subheading 3913.90.20. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope is dispositive.3

    3 For a complete description of the scope of the order, see Preliminary Decision Memorandum.

    Tolling of Deadline of Preliminary Results of Review

    As explained in the memorandum from the Acting Assistant Secretary for Enforcement and Compliance, the Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days.4 As a result, the revised deadline for the preliminary results of this review was April 7, 2016. On April 4, 2016, the Department extended the deadline for the preliminary results to August 5, 2016.

    4 See Memorandum to the Record from Ron Lorentzen, Acting Assistant Secretary for Enforcement & Compliance, “Tolling of Administrative Deadlines As a Result of the Government Closure During Snowstorm Jonas” (January 27, 2016).

    Methodology

    The Department is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the “Act”). The Department calculated export prices and constructed export prices, as appropriate, in accordance with section 772 of the Act. Given that the PRC is a non-market economy (“NME”) country, within the meaning of section 771(18) of the Act, the Department calculated NV in accordance with section 773(c) of the Act.

    For a full description of the methodology underlying the preliminary results of this review, see the Preliminary Decision Memorandum, which is hereby adopted by this notice.5 The Preliminary Decision Memorandum is a public document and is made available to the public via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be found at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    5 A list of topics discussed in the Preliminary Decision Memorandum is provided in the Appendix to this notice.

    Preliminary Determination of No Shipments

    Based on an analysis of CBP information and timely certifications of no shipments during the POR, the Department preliminarily determines that Meihua Group International Trading (Hong Kong) Limited, Langfang Meihua Bio-Technology Co., Ltd., and Xinjiang Meihua Amino Acid Co., Ltd. had no shipments and, therefore, no reviewable transactions during the POR. For additional information regarding this determination, see the Preliminary Decision Memorandum.

    Consistent with our practice in NME cases, the Department is not rescinding this administrative review for these companies, but intends to complete the review and issue appropriate instructions to CBP based on the final results of the review.6

    6See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694, 65694-95 (October 24, 2011) and the “Assessment Rates” section, below.

    Preliminary Partial Rescission of Antidumping Duty Administrative Review

    Inner Mongolia Jianlong's one sale during the POR is subject to both an ongoing new shipper review and this administrative review. The Department preliminarily rescinded the new shipper review based on a finding that the sale was not a bona fide sale.7 Because the sale subject to this administrative review is the same sale preliminarily found to be a non-bona fide sale in the new shipper review, and there are no other reviewable sales by Inner Mongolia Jianlong during the POR, we are preliminarily rescinding this review with respect to Inner Mongolia Jianlong. For additional information regarding this determination, see the Preliminary Decision Memorandum.

    7See Memorandum to the File, “Inner Mongolia Jianlong Biochemical Co., Ltd.'s New Shipper Review Analysis,” dated concurrently with this notice.

    Preliminary Results of Review

    Based on record evidence, the Department preliminarily continues to treat Deosen Biochemical Ltd. and Deosen Biochemical (Ordos) Ltd. as a single entity for AD purposes. Furthermore, based on record evidence, the Department preliminarily finds that Neimenggu Fufeng Biotechnologies Co., Ltd. (aka Inner Mongolia Fufeng Biotechnologies Co., Ltd.), Shandong Fufeng Fermentation Co. Ltd., and Xinjiang Fufeng Biotechnologies Co., Ltd. are affiliated and should be treated as a single entity for AD purposes. For additional information, see the Preliminary Decision Memorandum.

    In addition to the mandatory respondents, we preliminarily determine that CP Kelco (Shandong) Biological Company Limited and Shanghai Smart Chemicals Co., Ltd. also demonstrated their eligibility for a separate rate in this administrative review. Consistent with the Department's practice, we preliminarily assigned these companies a rate equal to the simple average of the weighted-average dumping margins assigned to the mandatory respondents in this review.8

    8See Preliminary Decision Memorandum. Because only two weighted-average dumping margins were assigned to the individually examined respondents for these preliminary results, using a weighted average of these two rates risks disclosure of business proprietary information. Therefore we calculated a simple average of the rates assigned to Fufeng and Deosen.

    Because Hebei Xinhe Biochemical Co. Ltd. did not submit a separate rate application or separate rate certification, or make a claim that it had no exports, sales, or entries of subject merchandise during the POR by the deadline established in the Initiation Notice, we preliminarily find that it failed to establish its entitlement to a separate rate and that it, therefore, remains a part of the PRC-wide entity.9 The rate previously established for the PRC-wide entity is 154.07 percent. This rate is not under review.10

    9See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 79 FR 51548, 51549 (August 29, 2014) (“All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification. . .”).

    10See Preliminary Decision Memorandum. Pursuant to the Department's change in practice, the Department no longer considers the NME entity as an exporter conditionally subject to administrative reviews. See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963, 65970 (November 4, 2013). Under this practice, the NME entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity. Because no party requested a review of the entity, the entity is not under review and the entity's rate is not subject to change.

    Finally, we preliminarily determined that Deosen and A.H.A. International Co., Ltd. did not cooperate to the best of their ability in this administrative review, and as a result, we have based their dumping margins on adverse facts available for these preliminary results.11

    11See Preliminary Decision Memorandum.

    The Department preliminarily determines that the following weighted-average dumping margins exist for the POR:

    Exporter Weighted-average
  • dumping margin
  • (percent)
  • Neimenggu Fufeng Biotechnologies Co., Ltd. (aka Inner Mongolia Fufeng Biotechnologies Co., Ltd.)/Shandong Fufeng Fermentation Co., Ltd./Xinjiang Fufeng Biotechnologies Co., Ltd 0.00 Deosen Biochemical Ltd./Deosen Biochemical (Ordos) Ltd 154.07 A.H.A. International Co., Ltd 154.07 CP Kelco (Shandong) Biological Company Limited 77.04 Shanghai Smart Chemicals Co., Ltd 77.04
    Disclosure and Public Comment

    The Department intends to disclose to parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.12 Rebuttals to case briefs may be filed no later than five days after case briefs are filed, and all rebuttal comments must be limited to comments raised in the case briefs.13

    12See 19 CFR 351.309(c)(1)(ii).

    13See 19 CFR 351.309(d).

    Any interested party may request a hearing within 30 days of publication of this notice.14 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.15

    14See 19 CFR 351.310(c).

    15See 19 CFR 351.310(d).

    Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in the case briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

    Assessment Rates

    Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.16 The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of the final results of this review.

    16See 19 CFR 351.212(b)(1).

    For each individually examined respondent in this review whose calculated weighted-average dumping margin in the final results of review is above de minimis (i.e., greater than or equal to 0.5 percent), the Department intends to calculate importer- (or customer) specific assessment rates, in accordance with 19 CFR 351.212(b)(1).17 Where the respondent reported reliable entered values, the Department intends to calculate importer- (or customer) specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to the importer (or customer) and dividing this amount by the total entered value of the sales to the importer (or customer).18 Where the Department calculates an importer- (or customer) specific weighted-average dumping margin by dividing the total amount of dumping for reviewed sales to the importer (or customer) by the total sales quantity associated with those transactions, the Department will direct CBP to assess importer- (or customer) specific assessment rates based on the resulting per-unit rates.19 We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate is above de minimis. Where either the respondent's weighted average dumping margin is zero or de minimis, or an importer (or customer-) specific ad valorem or per-unit rate is zero or de minimis, the Department will instruct CBP to liquidate appropriate entries without regard to antidumping duties.20 For entries that were not reported in the U.S. sales database submitted by a company individually examined during this review, and any suspended entries that entered under an exporter's case number however the Department determined that the exporter had no shipments of subject merchandise, the Department will instruct CBP to liquidate such entries at the PRC-wide rate.21

    17See Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings: Final Modification, 77 FR 8101 (February 14, 2012) (“Final Modification”).

    18See 19 CFR 351.212(b)(1).

    19Id.

    20See Final Modification at 8103.

    21See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011), for a full discussion of this practice.

    In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that rate established in the final results of this review (except, if the rate is zero or de minimis, then the cash deposit rate of zero will be established for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the PRC-wide entity, which is 154.07 percent; and (4) for all non-PRC exporters of subject merchandise that have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.

    Dated: August 5, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Preliminary Decision Memorandum 1. Summary 2. Background 3. Scope of the Order 4. Selection of Respondents 5. Preliminary Determination of No Shipments 6. Preliminary Partial Rescission of Antidumping Duty Administrative Review 7. Application of Adverse Facts Available and Selection of Adverse Facts Available Rate 8. Single Entity Treatment 9. Discussion of Methodology a. Non-Market Economy Country b. Separate Rates c. Surrogate Country d. Date of Sale e. Comparisons to Normal Value f. U.S. Price g. Normal Value h. Currency Conversion 10. Recommendation
    [FR Doc. 2016-19410 Filed 8-12-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE788 Endangered Species; File No. 20339 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that the NMFS Southeast Fisheries Center (SEFSC), 75 Virginia Beach Drive, Miami, FL 33149 [Responsible Party: Bonnie Ponwith], has applied in due form for a permit to take loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempii), green (Chelonia mydas), leatherback (Dermochelys coriacea), hawksbill (Eretmochelys imbricata), olive ridley (Lepidochelys olivacea) and unidentified sea turtles for purposes of scientific research.

    DATES:

    Written, telefaxed, or email comments must be received on or before September 14, 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. 20339 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:

    Arturo Herrera or Amy Hapeman, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested 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).

    The SEFSC requests a five-year permit to study sea turtles in the Atlantic Ocean, Gulf of Mexico and Caribbean Sea. Animals for study would be directly captured by trawl or obtained as legal bycatch from a commercial fishery. The purpose of this project is to assist in the development and testing of gear aboard commercial fishing vessels to mitigate interactions and capture of sea turtles. Researchers would be authorized to measure, weigh, apply a temporary carapace mark, flipper and Passive Integrated Transponder tagging, tissue sample, and photograph/video live sea turtles before release and to salvage carcasses and parts from dead sea turtles. Up to 253 loggerhead, 117 Kemp's ridley, 116 leatherback, 62 green, 41 hawksbill, 41 olive ridley and 85 unidentified sea turtles would be sampled annually.

    Dated: August 9, 2016. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-19271 Filed 8-12-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 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: National Oceanic and Atmospheric Administration (NOAA).

    Title: Southeast Region Logbook Family of Forms.

    OMB Control Number: 0648-0016.

    Form Number(s): None.

    Type of Request: Regular (extension of a current information collection).

    Number of Respondents: 3,634.

    Average Hours per Response: Annual fixed-cost reports, 30 minutes; Colombian fishery logbooks, 18 minutes; discard logbooks, 15 minutes; headboat, golden crab, reef fish-mackerel, economic cost/trip, wreckfish, and shrimp logbooks, 10 minutes; no-fishing responses for golden crab, reef fish-mackerel, charterboat, wreckfish and Colombian fisheries, 2 minutes.

    Burden Hours: 17,038.

    Needs and Uses: This request is for extension of a current information collection.

    Participants in most Federally-managed fisheries in the Southeast Region are currently required to keep and submit catch and effort logbooks from their fishing trips. A subset of these vessels also provide information on the species and quantities of fish, shellfish, marine turtles, and marine mammals that are caught and discarded or have interacted with the vessel's fishing gear. A subset of these vessels also provide information about dockside prices, trip operating costs, and annual fixed costs.

    The data are used for scientific analyses that support critical conservation and management decisions made by national and international fishery management organizations. Interaction reports are needed for fishery management planning and to help protect endangered species and marine mammals. Price and cost data will be used in analyses of the economic effects of proposed regulations.

    Affected Public: Business or other for-profit organizations; individuals or households.

    Frequency: Annually and per fishing trip.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: August 9, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-19289 Filed 8-12-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE800 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public Meeting AGENCY:

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

    ACTION:

    Notice of SEDAR Data Best Practices Standing Panel webinar.

    SUMMARY:

    The SEDAR Data Best Practices Panel will develop, review, and evaluate best practice recommendations for SEDAR Data Workshops. See SUPPLEMENTARY INFORMATION.

    DATES:

    The SEDAR Data Best Practices Standing Panel webinar will be held on Thursday, September 1, 2016, from 10 a.m. to 12 p.m. (EST).

    ADDRESSES:

    Meeting address: The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julia Byrd at SEDAR (see FOR FURTHER INFORMATION CONTACT below) to request an invitation providing webinar access information. Please request webinar invitations at least 24 hours in advance of each webinar.

    SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405. www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    The SEDAR Data Best Practices Standing Panel is charged with developing, reviewing, and evaluating best practice recommendations for SEDAR Data Workshops. The items of discussion for this webinar are as follows:

    1. Fin