Federal Register Vol. 81, No.162,

Federal Register Volume 81, Issue 162 (August 22, 2016)

Page Range56471-57437
FR Document

81_FR_162
Current View
Page and SubjectPDF
81 FR 56752 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 56716 - Sunshine Act Meeting NoticePDF
81 FR 56535 - Fisheries of the Northeastern United States; Scup Fishery; Adjustment to the 2016 Winter II QuotaPDF
81 FR 56704 - South Carolina Electric & Gas Company and South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Unit 2PDF
81 FR 56626 - Announcement of an Open Public Teleconference MeetingPDF
81 FR 56652 - Forshaw Chemicals Superfund Site Charlotte, Mecklenburg County, North Carolina; Notice of SettlementPDF
81 FR 56653 - Petition of Direct Chassislink, Inc., Flexi-Van Leasing, Inc., and Trac Intermodal for an Order To Show Cause; Notice of Filing and Request for CommentsPDF
81 FR 56756 - Members of Senior Executive Service Performance Review BoardsPDF
81 FR 56584 - Certain Biaxial Integral Geogrid Products From the People's Republic of China: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Affirmative Determination of Critical Circumstances, in Part, and Postponement of Final DeterminationPDF
81 FR 56587 - Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Notice of Final Results of Antidumping Duty Changed Circumstances ReviewPDF
81 FR 56616 - Applications for New Awards; Preschool Development Grants-Preschool Pay for Success Feasibility PilotPDF
81 FR 56582 - Foreign-Trade Zone 124-Gramercy, Louisiana; Application for Expansion of Subzone 124D; LOOP LLC; Lafourche and St. James Parishes, LouisianaPDF
81 FR 56505 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
81 FR 56582 - Foreign-Trade Zone (FTZ) 133-Quad-Cities, Iowa/Illinois; Authorization of Production Activity; Deere & Company; Subzone 133D (Construction and Forestry Equipment); Davenport, IowaPDF
81 FR 56586 - Xanthan Gum From the People's Republic of China: Rescission of 2014-2015 Antidumping Duty New Shipper ReviewPDF
81 FR 56582 - Foreign-Trade Zone 262-Southaven, Mississippi; Application for Subzone; ASICS America Corporation; Byhalia, MississippiPDF
81 FR 56583 - Silicomanganese From India: Final Results No Shipment Determination of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 56477 - Investigation of Claims of Evasion of Antidumping and Countervailing DutiesPDF
81 FR 56743 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Application for Employment With the Federal Aviation AdministrationPDF
81 FR 56684 - Implementation of the Privacy Act of 1974, as Amended; Notice To Amend Systems of Records, Integrated Real Estate Management System, Development Application Processing System, Tenant Rental Assistance Certification SystemPDF
81 FR 56743 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Bird/Other Wildlife Strike ReportPDF
81 FR 56716 - New Postal ProductsPDF
81 FR 56744 - Notice of Release From Federal Surplus Property and Grant Assurance Obligations at Redding Municipal Airport (RDD), Redding, CaliforniaPDF
81 FR 56475 - Special Conditions: Garmin International, Beechcraft Corporation Model 400A Airplanes; Airplane Electronic-System Security Protection From Unauthorized External AccessPDF
81 FR 56654 - Medicaid Program; Connecting Kids to Coverage Outreach and Enrollment Cooperative AgreementPDF
81 FR 56492 - Expansion of the Sta. Rita Hills Viticultural AreaPDF
81 FR 56536 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota TransferPDF
81 FR 56602 - Atlantic Coastal Fisheries Cooperative Management Act Provisions; Horseshoe Crabs; Application for Exempted Fishing Permit, 2016PDF
81 FR 56535 - Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Harvested for the Commonwealth of MassachusettsPDF
81 FR 56474 - Special Conditions: Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Airplane Electronic-System Security Protection From Authorized Internal AccessPDF
81 FR 56472 - Special Conditions: Bombardier Aerospace Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Automatic Speed Protection for Design Dive SpeedPDF
81 FR 56490 - Establishment of the Champlain Valley of New York Viticultural AreaPDF
81 FR 56759 - Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities; Notice of MeetingPDF
81 FR 56671 - Notice of MeetingPDF
81 FR 56697 - United States v. Caledonia Investments plc; Proposed Final Judgment and Competitive Impact StatementPDF
81 FR 56696 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Application and Permit for Importation of Firearms, Ammunition and Defense Articles, ATF F 6 (5330.3A) Part IPDF
81 FR 56757 - Submission for OMB Review; Comment RequestPDF
81 FR 56606 - Proposed Information Collection; Comment Request; Licensing of Private Remote-Sensing Space SystemsPDF
81 FR 56534 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool FisheryPDF
81 FR 56716 - Virginia Electric Power Company; Surry Power Station, Unit Nos. 1 and 2; Use of AREVA's M5® Alloy Fuel Rod Cladding MaterialPDF
81 FR 56614 - Defense Science Board; Notice of Advisory Committee MeetingsPDF
81 FR 56703 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Survey of Occupational Injuries and IllnessesPDF
81 FR 56755 - Proposed Collection of Information: U.S. Treasury Securities State and Local Government Series Early Redemption RequestPDF
81 FR 56755 - Proposed Collection of Information: Request to Reissue United States Savings BondsPDF
81 FR 56754 - Proposed Collection of Information: Assignment FormPDF
81 FR 56754 - Proposed Collection of Information: Direct Deposit, Go Direct, and Direct Express Sign-Up FormsPDF
81 FR 56632 - Rocky Mountain Region Transmission, Ancillary Services, Transmission Losses, and Sales of Surplus Products-Rate Order No. WAPA-174PDF
81 FR 56694 - Notice of Realty Action: Rosebud Parcel-Recreation and Public Purposes Act Classification for Conveyance of Public Lands in Box Elder County, UTPDF
81 FR 56627 - Orders Granting Authority To Import and Export Natural Gas, and To Export Liquefied Natural Gas, During July 2016PDF
81 FR 56471 - Energy Conservation Program: Energy Conservation Standards for DehumidifiersPDF
81 FR 56631 - Luning Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 56630 - Luning Energy Holdings LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 56631 - Elevation Energy Group, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 56628 - Combined Notice of Filings #2PDF
81 FR 56630 - Combined Notice of Filings #1PDF
81 FR 56672 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 56669 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 56654 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 56658 - National Mammography Quality Assurance Advisory Committee; Amendment of NoticePDF
81 FR 56753 - Agency Information Collection Activities: Information Collection Revision; Submission for OMB Review; Uniform Interagency Transfer Agent Registration and Amendment FormPDF
81 FR 56751 - Proposed Information Collections; Comment Request (No. 60)PDF
81 FR 56580 - Indirect Cost Rates for the Damage Assessment, Remediation, and Restoration Program for Fiscal Year 2015PDF
81 FR 56604 - Requesting Nominations for the Marine Protected Areas Federal Advisory Committee; Notice of Public MeetingPDF
81 FR 56601 - North Pacific Fishery Management Council; Public MeetingPDF
81 FR 56601 - Western Pacific Fishery Management Council; Public MeetingsPDF
81 FR 56745 - Commercial Driver's Licenses; Proposed Pilot Program To Allow Persons Between the Ages of 18 and 21 With Military Driving Experience To Operate Commercial Motor Vehicles in Interstate CommercePDF
81 FR 56750 - Port Performance Freight Statistics Working GroupPDF
81 FR 56607 - Evaluation of State Coastal Management ProgramsPDF
81 FR 56744 - EUROCAE WG-96/RTCA SC-236 Joint Plenary #1 Standards for Wireless Avionics Intra-Communication System (WAIC) Within 4200-4400 MHzPDF
81 FR 56506 - Safety Zone; Lake Superior Dragon Boat Festival Fireworks Display; Superior Bay, Superior, WIPDF
81 FR 56580 - Submission for OMB Review; Comment RequestPDF
81 FR 56652 - Agency Information Collection Activities; Comment RequestPDF
81 FR 56692 - Endangered and Threatened Wildlife and Plants; 5-Year Status Reviews of 14 Caribbean SpeciesPDF
81 FR 56656 - Adapting Regulatory Oversight of Next Generation Sequencing-Based Tests; Public Workshop; Request for CommentsPDF
81 FR 56660 - Proposed Changes to the Black Lung Clinics ProgramPDF
81 FR 56540 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 56538 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 56692 - Request for Nominees for the Advisory Council on Wildlife TraffickingPDF
81 FR 56504 - Drawbridge Operation Regulation; Victoria Barge Canal, Bloomington, TXPDF
81 FR 56577 - Black Hills National Forest Advisory BoardPDF
81 FR 56663 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment RequestPDF
81 FR 56505 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
81 FR 56577 - Office of Tribal Relations, Council for Native American Farming and RanchingPDF
81 FR 56615 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Guaranty Agency Financial ReportPDF
81 FR 56670 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 56664 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Data Collection Tool for State Offices of Rural Health Grant ProgramPDF
81 FR 56655 - Announcement of the Award of Single-Source Grants Under the Wilson-Fish Alternative Program (W-F)PDF
81 FR 56610 - Post Allowance and RefilingPDF
81 FR 56690 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Captive Wildlife Safety ActPDF
81 FR 56658 - Agency Information Collection Activities; Proposed Collection; Comment Request; Reporting Associated With Designated New Animal Drugs for Minor Use and Minor SpeciesPDF
81 FR 56695 - Granular Polytetrafluoroethylene Resin From Italy Termination of Five-Year ReviewPDF
81 FR 56750 - Notice To Rescind a Notice of Intent To Prepare an Environmental Impact StatementPDF
81 FR 56703 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection; Application for Permit to Import Controlled Substances for Domestic and/or Scientific Purposes Pursuant to 21 U.S.C 952; DEA Form 357PDF
81 FR 56695 - Ammonium Nitrate From Russia; Termination of Five-Year ReviewPDF
81 FR 56695 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
81 FR 56682 - Proposed Flood Hazard DeterminationsPDF
81 FR 56574 - Competitive Passenger Rail Service Pilot ProgramPDF
81 FR 56673 - Final Flood Hazard DeterminationsPDF
81 FR 56680 - Final Flood Hazard DeterminationsPDF
81 FR 56674 - Final Flood Hazard DeterminationsPDF
81 FR 56679 - Proposed Flood Hazard DeterminationsPDF
81 FR 56676 - Proposed Flood Hazard DeterminationsPDF
81 FR 56628 - PPL Electric Utilities Corporation; Notice of FilingPDF
81 FR 56630 - NorthWestern Corporation; Notice of FilingPDF
81 FR 56629 - Combined Notice of Filings #1PDF
81 FR 56722 - Davis Fundamental ETF Trust, et al.; Notice of ApplicationPDF
81 FR 56724 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Proposed Rule Change To Adopt a New Exception in Exchange Rule 1000(f) for Sub-MPV Split-Priced OrdersPDF
81 FR 56729 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of Proposed Rule Change To List and Trade Shares of the First Trust Equity Market Neutral ETF of the First Trust Exchange-Traded Fund VIIIPDF
81 FR 56717 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Adopting Maximum Fees Member Organizations may Charge in Connection With the Distribution of Investment Company Shareholder Reports Pursuant to Any Electronic Delivery Rules Adopted by the Securities and Exchange CommissionPDF
81 FR 56733 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Proposed Rule Change To Amend Rule 1017, Openings in OptionsPDF
81 FR 56728 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the First Trust Horizon Managed Volatility Domestic ETF and the First Trust Horizon Managed Volatility Developed International ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 56720 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending Section 146 of the NYSE MKT Company Guide To Adjust the Entitlement to Services of Special Purpose Acquisition CompaniesPDF
81 FR 56679 - Agency Information Collection Activities: Proposed Collection; Comment Request; FEMA Preparedness Grants: Urban Areas Security Initiative (UASI) Nonprofit Security Grant Program (NSGP)PDF
81 FR 56675 - Agency Information Collection Activities: Proposed Collection; Comment Request; FEMA Preparedness Grants: Tribal Homeland Security Grant Program (THSGP).PDF
81 FR 56605 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 56603 - Endangered and Threatened Species; Take of Anadromous FishPDF
81 FR 56589 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys off the Coast of MassachusettsPDF
81 FR 56758 - Advisory Committee: VA National Academic Affiliations Council Notice of MeetingPDF
81 FR 56666 - Center for Scientific Review; Notice of MeetingPDF
81 FR 56668 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 56666 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 56665 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of MeetingPDF
81 FR 56666 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 56666 - National Heart, Lung, and Blood Institute; Notice of MeetingPDF
81 FR 56693 - Indian Gaming; Approval of Amendment to Tribal-State Class III Gaming Compact in the State of WyomingPDF
81 FR 56656 - Medical Device User Fee and Modernization Act; Notice to Public of Web Site Location of Fiscal Year 2016 Proposed Guidance Development; CorrectionPDF
81 FR 56578 - Notice of Meeting of the Agricultural Air Quality Task ForcePDF
81 FR 56556 - Air Plan Approval; New Hampshire; Rules for Reducing Particulate EmissionsPDF
81 FR 56579 - Notice of Proposed Changes to the National Handbook of Conservation Practices for the Natural Resources Conservation ServicePDF
81 FR 56612 - Submission for OMB Review; Comment Request; “Pro Bono Survey”PDF
81 FR 56608 - Patent Term ExtensionPDF
81 FR 56613 - Patent Law TreatyPDF
81 FR 56550 - Special Regulations; Areas of the National Park System, Cape Hatteras National Seashore-Off-Road Vehicle ManagementPDF
81 FR 56559 - Amendments to Regulations Governing Service Contracts and NVOCC Service ArrangementsPDF
81 FR 56543 - User Fees for Installment AgreementsPDF
81 FR 56667 - Proposed Collection; 60-Day Comment Request; Materials To Support NIH Serving as an Institutional Review Board (IRB) of Record or a Single IRB for Outside InstitutionsPDF
81 FR 56668 - Proposed Collection; 60-Day Comment Request; A National Survey of Nurse Coaches (CC)PDF
81 FR 57402 - Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management StandardPDF
81 FR 56558 - Guidance for Implementing the Federal Flood Risk Management StandardPDF
81 FR 56508 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review RequirementsPDF
81 FR 56555 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review RequirementsPDF
81 FR 56572 - Requirement for Nondiscrimination Against End-Users of Supplies or Services (“Beneficiaries”) Under USAID-Funded ContractsPDF
81 FR 56512 - Air Plan Approval; South Carolina; Prong 4-2008 Ozone, 2010 NO2PDF
81 FR 56514 - Removal of Environmental Considerations RegulationsPDF
81 FR 56682 - FEMA Directive 108-1 and FEMA Instruction 108-1-1PDF
81 FR 56575 - Management of Non-Federal Oil and Gas RightsPDF
81 FR 57374 - Energy Conservation Program: Test Procedures for Cooking ProductsPDF
81 FR 56665 - Decision To Evaluate a Petition To Designate a Class of Employees From Area IV of the Santa Susana Field Laboratory in California, To Be Included in the Special Exposure CohortPDF
81 FR 57348 - Public Safety Officers' Benefits ProgramPDF
81 FR 56762 - Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2017 Rates; Quality Reporting Requirements for Specific Providers; Graduate Medical Education; Hospital Notification Procedures Applicable to Beneficiaries Receiving Observation Services; Technical Changes Relating to Costs to Organizations and Medicare Cost Reports; Finalization of Interim Final Rules With Comment Period on LTCH PPS Payments for Severe Wounds, Modifications of Limitations on Redesignation by the Medicare Geographic Classification Review Board, and Extensions of Payments to MDHs and Low-Volume HospitalsPDF

Issue

81 162 Monday, August 22, 2016 Contents Agency Agency for International Development PROPOSED RULES USAID-Funded Contracts: Requirement for Nondiscrimination against End-Users of Supplies or Services, 56572-56574 2016-19716 Agriculture Agriculture Department See

Forest Service

See

Natural Resources Conservation Service

See

Rural Housing Service

NOTICES Meetings: Council for Native American Farming and Ranching, 56577 2016-19929
Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau RULES Viticultural Areas: Establishment of the Champlain Valley of New York, 56490-56492 2016-19992 Expansion of the Sta. Rita Hills, 56492-56504 2016-19998 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56751-56752 2016-19955 Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application and Permit for Importation of Firearms, Ammunition and Defense Articles, 56696-56697 2016-19987 Antitrust Division Antitrust Division NOTICES Final Judgments and Competitive Impact Statements: United States v. Caledonia Investments plc, 56697-56703 2016-19988 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals, etc., 56762-57345 2016-18476 NOTICES Medicaid Program: Connecting Kids to Coverage Outreach and Enrollment Cooperative Agreement, 56654-56655 2016-19999 Children Children and Families Administration NOTICES Single-Source Grants: Wilson-Fish Alternative Program, 56655-56656 2016-19923 Coast Guard Coast Guard RULES Drawbridge Operations: Lake Washington Ship Canal, Seattle, WA, 56505 2016-19930 Sacramento River, Sacramento, CA, 56505-56506 2016-20019 Victoria Barge Canal, Bloomington, TX, 56504 2016-19933 Safety Zones: Lake Superior Dragon Boat Festival Fireworks Display; Superior Bay, Superior, WI, 56506-56507 2016-19943 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

NOTICES Indirect Cost Rates for the Damage Assessment, Remediation, and Restoration Program for Fiscal Year 2015, 56580-56582 2016-19953
Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56752-56753 C1--2016--19268 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Uniform Interagency Transfer Agent Registration and Amendment Form, 56753-56754 2016-19956 Defense Department Defense Department NOTICES Meetings: Defense Science Board, 56614-56615 2016-19980 Drug Drug Enforcement Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Permit to Import Controlled Substances for Domestic and/or Scientific Purposes, 56703 2016-19916 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Guaranty Agency Financial Report, 56615-56616 2016-19928 Applications for New Awards: Preschool Development Grants—Preschool Pay for Success Feasibility Pilot, 56616-56626 2016-20021 Meetings: National Advisory Council on Indian Education, 56626-56627 2016-20028 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

Western Area Power Administration

RULES Energy Conservation Program: Energy Conservation Standards for Dehumidifiers; Correction, 56471 2016-19969 PROPOSED RULES Energy Conservation Program: Test Procedures for Cooking Products, 57374-57400 2016-19229 NOTICES Authority to Import and Export Natural Gas, etc.: Lake Charles Exports LLC, Cameron LNG LLC, American L and P Co. d.b.a. American Light and Power, et al., 56627-56628 2016-19971
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: South Carolina; Prong 4-2008 Ozone, 2010 NO2, SO2, and 2012 PM2.5, 56512-56514 2016-19537 Virginia; Minor New Source Review Requirements, 56508-56512 2016-19770 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: New Hampshire; Rules for Reducing Particulate Emissions, 56556-56558 2016-19869 Virginia; Minor New Source Review Requirements, 56555-56556 2016-19768 NOTICES Settlements: Forshaw Chemicals Superfund Site; Charlotte, Mecklenburg County, NC, 56652 2016-20027 Equal Equal Employment Opportunity Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56652-56653 2016-19941 Federal Aviation Federal Aviation Administration RULES Special Conditions: Bombardier Aerospace Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Automatic Speed Protection for Design Dive Speed, 56472-56474 2016-19993 Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Airplane Electronic-System Security Protection from Authorized Internal Access, 56474-56475 2016-19994 Garmin International, Beechcraft Corporation Model 400A Airplanes; Airplane Electronic-System Security Protection from Unauthorized External Access, 56475-56477 2016-20000 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 56538-56542 2016-19935 2016-19936 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Employment with the Federal Aviation Administration, 56743-56744 2016-20006 Bird and Other Wildlife Strike Report, 56743 2016-20004 Meetings: EUROCAE WG-96 and RTCA SC-236 Joint Plenary #1 Standards for Wireless Avionics Intra-Communication System within 4200-4400 MHz, 56744-56745 2016-19944 Requests to Release Airport Property: Redding Municipal Airport, Redding, CA, 56744 2016-20001 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56752-56753 C1--2016--19268 Federal Emergency Federal Emergency Management Agency RULES Removal of Environmental Considerations Regulations, 56514-56534 2016-19536 PROPOSED RULES Floodplain Management and Protection of Wetlands Regulations, 57402-57437 2016-19810 Guidance: Implementing the Federal Flood Risk Management Standard, 56558-56559 2016-19809 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Preparedness Grants—Urban Areas Security Initiative Nonprofit Security Grant Program, 56679 2016-19893 Tribal Homeland Security Grant Program, 56675-56676 2016-19892 FEMA Directive 108-1 and FEMA Instruction 108-1-1, 56682 2016-19534 Flood Hazard Determinations, 56673-56675, 56680-56682 2016-19907 2016-19908 2016-19909 Flood Hazard Determinations; Proposals, 56676-56680, 56682-56683 2016-19905 2016-19906 2016-19911 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 56628-56630 2016-19901 2016-19962 2016-19963 Filings: NorthWestern Corp., 56630 2016-19903 PPL Electric Utilities Corp., 56628 2016-19904 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Elevation Energy Group LLC, 56631-56632 2016-19964 Luning Energy Holdings LLC, 56630-56631 2016-19965 Luning Energy LLC, 56631 2016-19966 Federal Maritime Federal Maritime Commission PROPOSED RULES Service Contracts and Non-Vessel Operating Common Carriers Service Arrangements, 56559-56571 2016-19843 NOTICES Petitions: Direct Chassislink, Inc., Flexi-Van Leasing, Inc., and Trac Intermodal, 56653 2016-20026 Federal Motor Federal Motor Carrier Safety Administration NOTICES Pilot Program to Allow Persons Between the Ages of 18 and 21 with Military Driving Experience to Operate Commercial Motor Vehicles in Interstate Commerce, 56745-56750 2016-19948 Federal Railroad Federal Railroad Administration PROPOSED RULES Competitive Passenger Rail Service Pilot Program, 56574-56575 2016-19910 NOTICES Environmental Impact Statements; Availability, etc.: Rochester-Twin Cities Passenger Rail Corridor Investment Plan, 56750 2016-19917 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56752-56753 C1--2016--19268 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 56654 2016-19958 Fiscal Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Assignment Form, 56754 2016-19975 Direct Deposit, Go Direct, and Direct Express Sign-Up Forms, 56754-56755 2016-19974 Request to Reissue United States Savings Bonds, 56755-56756 2016-19977 U.S. Treasury Securities State and Local Government Series Early Redemption Request, 56755 2016-19978 Fish Fish and Wildlife Service PROPOSED RULES Management of Non-Federal Oil and Gas Rights, 56575-56576 2016-19519 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Captive Wildlife Safety Act, 56690-56691 2016-19920 Endangered and Threatened Species: 5-Year Status Reviews of 14 Caribbean Species, 56692-56693 2016-19940 Requests for Nominations: Advisory Council on Wildlife Trafficking, 56692 2016-19934 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reporting Associated with Designated New Animal Drugs for Minor Use and Minor Species, 56658-56660 2016-19919 Medical Device User Fee and Modernization Act: Web Site Location of Fiscal Year 2016 Proposed Guidance Development; Correction, 56656 2016-19874 Meetings: Adapting Regulatory Oversight of Next Generation Sequencing-Based Tests, 56656-56658 2016-19939 National Mammography Quality Assurance Advisory Committee, 56658 2016-19957 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Subzone Expansion: LOOP LLC, Foreign-Trade Zone 124, Lafourche and St. James Parishes, LA, 56582 2016-20020 Applications for Subzone Status: ASICS America Corp., Foreign-Trade Zone 262, Southaven, MS, 56582 2016-20013 Production Activities: Deere and Co., Foreign-Trade Zone 13, Quad-Cities, IA and IL, 56582 2016-20017 Forest Forest Service NOTICES Meetings: Black Hills National Forest Advisory Board, 56577-56578 2016-19932 Health and Human Health and Human Services Department 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

See

Substance Abuse and Mental Health Services Administration

NOTICES Designation of a Class of Employees for Addition to the Special Exposure Cohort: Santa Susana Field Laboratory, CA, 56665 2016-19198
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56663-56664 2016-19931 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Data Collection Tool for State Offices of Rural Health Grant Program, 56664-56665 2016-19924 Proposed Changes to the Black Lung Clinics Program, 56660-56662 2016-19938 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 Privacy Act; Systems of Records, 56684-56690 2016-20005 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Approval of Amendment to Tribal-State Class III Gaming Compact in the State of Wyoming, 56693-56694 2016-19877 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service PROPOSED RULES User Fees for Installment Agreements, 56543-56550 2016-19836 NOTICES Members of Senior Executive Service Performance Review Boards, 56756-56757 2016-20025 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Biaxial Integral Geogrid Products from the People's Republic of China, 56584-56586 2016-20024 Passenger Vehicle and Light Truck Tires from the People's Republic of China, 56587-56589 2016-20023 Silicomanganese from India, 56583-56584 2016-20009 Xanthan Gum from the People's Republic of China, 56586-56587 2016-20014 International Trade Com International Trade Commission NOTICES Complaints: Personal Transporters, Components Thereof, and Packaging and Manuals Therefor, 56695-56696 2016-19912 Investigations; Determinations, Modifications, and Rulings, etc.: Ammonium Nitrate from Russia, 56695 2016-19913 Granular Polytetrafluoroethylene Resin from Italy, 56695 2016-19918 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Antitrust Division

See

Drug Enforcement Administration

PROPOSED RULES Public Safety Officers' Benefits Program, 57348-57372 2016-18811
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Survey of Occupational Injuries and Illnesses, 56703-56704 2016-19979 Land Land Management Bureau NOTICES Realty Actions: Rosebud Parcel, Box Elder County, UT, 56694-56695 2016-19972 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Materials to Support NIH Serving as an Institutional Review Board of Record or a Single IRB for Outside Institutions, 56667-56668 2016-19829 National Survey of Nurse Coaches, 56668-56669 2016-19823 Meetings: Center for Scientific Review, 56666, 56668 2016-19884 2016-19885 2016-19886 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 56665 2016-19883 National Heart, Lung, and Blood Institute, 2016-19881 56666-56667 2016-19882 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Atlantic Bluefish Fishery; Quota Transfer, 56536-56537 2016-19997 Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool Fishery, 56534-56535 2016-19983 Scup Fishery; Adjustment to the 2016 Winter II Quota, 56535 2016-20031 Summer Flounder Fishery; Commercial Quota Harvested for the Commonwealth of Massachusetts, 56535-56536 2016-19995 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensing of Private Remote-Sensing Space Systems, 56606-56607 2016-19984 Endangered and Threatened Species: Take of Anadromous Fish, 56603-56606 2016-19890 2016-19891 Exempted Fishing Permit Applications: Atlantic Coastal Fisheries Horseshoe Crabs, 56602-56603 2016-19996 Meetings: Evaluation of State Coastal Management Programs, 56607-56608 2016-19946 Marine Protected Areas Federal Advisory Committee, 56604-56605 2016-19952 North Pacific Fishery Management Council, 56601-56602 2016-19950 2016-19951 Western Pacific Fishery Management Council, 56601 2016-19949 Takes of Marines Mammals Incidental to Specified Activities: Site Characterization Surveys off the Coast of Massachusetts, 56589-56601 2016-19889 National Park National Park Service PROPOSED RULES Special Regulations: Cape Hatteras National Seashore Off-Road Vehicle Management, 56550-56555 2016-19844 National Resources Natural Resources Conservation Service NOTICES Meetings: Agricultural Air Quality Task Force, 56578 2016-19872 Proposed Changes to the National Handbook of Conservation Practices, 56579-56580 2016-19866 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Exemptions: South Carolina Electric and Gas Co. and South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Unit 2, 56704-56715 2016-20030 Virginia Electric Power Co., Surry Power Station, Unit Nos. 1 and 2, 56716 2016-19982 Meetings; Sunshine Act, 56716 2016-20085 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Patent Law Treaty, 56613-56614 2016-19863 Patent Term Extension, 56608-56609 2016-19864 Post Allowance and Refiling, 56610-56612 2016-19921 Pro Bono Survey, 56612-56613 2016-19865 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 56716-56717 2016-20003 Rural Housing Service Rural Housing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56580 2016-19942 Securities Securities and Exchange Commission NOTICES Applications: Davis Fundamental ETF Trust, et al., 56722-56724 2016-19900 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ PHLX LLC, 56724-56728, 56733-56742 2016-19896 2016-19899 NASDAQ Stock Market, LLC, 56729-56733 2016-19898 New York Stock Exchange, LLC, 56717-56720 2016-19897 NYSE Arca, Inc., 56728 2016-19895 NYSE MKT, LLC, 56720-56722 2016-19894 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56669-56673 2016-19926 2016-19927 2016-19959 2016-19960 Meetings: Center for Substance Abuse Prevention National Advisory Council, 56671 2016-19989 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

NOTICES Meetings: Port Performance Freight Statistics Working Group, 56750-56751 2016-19947
Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Comptroller of the Currency

See

Fiscal Service

See

Internal Revenue Service

RULES Investigations of Claims of Evasions of Antidumping and Countervailing Duties, 56477-56490 2016-20007 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56757-56758 2016-19985
Customs U.S. Customs and Border Protection RULES Investigations of Claims of Evasions of Antidumping and Countervailing Duties, 56477-56490 2016-20007 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities, 56759 2016-19990 VA National Academic Affiliations Council, 56758-56759 2016-19887 Western Western Area Power Administration NOTICES Rate Orders: Rocky Mountain Region Transmission, Ancillary Services, Transmission Losses, and Sales of Surplus Products, 56632-56652 2016-19973 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 56762-57345 2016-18476 Part III Justice Department, 57348-57372 2016-18811 Part IV Energy Department, 57374-57400 2016-19229 Part V Homeland Security Department, Federal Emergency Management Agency, 57402-57437 2016-19810 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 electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

81 162 Monday, August 22, 2016 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2012-BT-STD-0027] RIN 1904-AC81 Energy Conservation Program: Energy Conservation Standards for Dehumidifiers AGENCY:

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

ACTION:

Final rule; technical correction.

SUMMARY:

The U.S. Department of Energy (DOE) published a final rule in the Federal Register on June 13, 2016, adopting more-stringent energy conservation standards for dehumidifiers. This correction addresses an error in the final rule by clarifying in Title 10 of the Code of Federal Regulations (CFR), section 430.32 the energy efficiency metric used to determine compliance with the amended standards. Neither the error nor the correction in this document affect the substance of the energy conservation standards rulemaking or any of the conclusions reached in support of the final rule. In addition, DOE removed 10 CFR 430.32(v)(1) because the requirement is now obsolete.

DATES:

This correction is effective August 22, 2016.

FOR FURTHER INFORMATION CONTACT:

Mr. Bryan Berringer, 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) 586-0371. Email: [email protected]

Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-7796. Email: [email protected]

SUPPLEMENTARY INFORMATION:

On June 13, 2016, DOE published a final rule (the “June 2016 final rule”) to adopt more-stringent energy conservation standards for dehumidifiers. 81 FR 38337. In the June 2016 final rule, DOE amended 10 CFR 430.32(v) to add paragraph (3) that incorrectly specified the energy efficiency metric for the amended standards. This final rule correction revises 10 CFR 430.32(v)(3) to specify that the metric is “integrated energy factor” instead of “integrated energy efficiency factor” for dehumidifier energy conservation standards that apply to portable and whole-home dehumidifiers manufactured in, or imported into, the United States on and after June 13, 2019. This energy efficiency metric is consistent with the DOE test procedure final rule to establish a new appendix X1 published on July 31, 2015. 80 FR 45801. DOE also removed 10 CFR 430.32(v)(1) because the requirement is obsolete.

Procedural Issues and Regulatory Review

The regulatory reviews conducted for this rulemaking are those set forth in the June 2016 final rule that originally codified amendments to DOE's energy conservation standards for dehumidifiers. 81 FR 38337. The amendments from that final rule became effective August 12, 2016. Id.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE has determined that notice and prior opportunity for comment on this rule are unnecessary and contrary to the public interest. This final rule correction revises 10 CFR 430.32(v)(3) to specify that the metric is “integrated energy factor” instead of “integrated energy efficiency factor” for dehumidifier energy conservation standards and removes 10 CFR 430.32(v)(1) because the requirement is obsolete. Neither the errors nor the corrections in this document affect the substance of the rulemaking or any of the conclusions reached in support of the final rule. For these reasons, DOE has also determined that there is good cause to waive the 30-day delay in effective date.

List of Subjects in 10 CFR Part 430

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

Issued in Washington, DC, on August 16, 2016. Kathleen Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

For the reasons set forth in the preamble, part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations is corrected by making the following correcting amendments:

PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 1. The authority citation for part 430 continues to read as follows: Authority:

42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

2. Section 430.32 is amended by: a. Removing paragraph (v)(1), b. Redesignating paragraph (v)(2) as (v)(1) and paragraph (v)(3) as (v)(2); and c. Revising newly designated paragraph (v)(2) to read as follows:
§ 430.32 Energy and water conservation standards and their compliance dates.

(v) * * *

(2) Dehumidifiers manufactured on or after June 13, 2019, shall have an integrated energy factor that meets or exceeds the following values:

Portable dehumidifier product capacity
  • (pints/day)
  • Minimum
  • integrated
  • energy factor
  • (liters/kWh)
  • 25.00 or less 1.30 25.01-50.00 1.60 50.01 or more 2.80 Whole-home dehumidifier product case volume (cubic feet) 8.0 or less 1.77 More than 8.0 2.41
    [FR Doc. 2016-19969 Filed 8-19-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-4137; Special Conditions No. 25-631-SC] Special Conditions: Bombardier Aerospace Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Automatic Speed Protection for Design Dive Speed AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Bombardier Aerospace Inc. (Bombardier) Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes will have a novel or unusual feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is associated with a reduced margin between design cruising speed, VC/MC, and design diving speed, VD/MD, based on the incorporation of a high-speed-protection system that limits nose-down pilot authority at speeds above VD/MD. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Bombardier on August 22, 2016. We must receive your comments by October 6, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-4137 using any of the following methods:

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

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

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Mark Freisthler, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-1119; facsimile 425-227-1232.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

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

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

    Background

    On May 30, 2012, Bombardier applied for an amendment to type certificate no. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes currently approved under type certificate no. T00003NY, and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are ultra-long-range, executive-interior business jets.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in type certificate no. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

    In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

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

    Novel or Unusual Design Features

    The Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes will have a novel or unusual design feature associated with a high-speed-protection system that limits nose-down pilot authority at speeds above VD/MD.

    Discussion

    Bombardier's high-speed-protection system limits nose-down pilot authority at speeds above VC/MC, and prevents the airplane from actually performing the maneuver required under § 25.335(b)(1).

    Section 25.335(b)(1) is an analytical envelope condition that was originally adopted in Part 4b of the Civil Air Regulations to provide an acceptable speed margin between design cruise speed and design dive speed. Flutter-clearance design speeds and airframe design loads are impacted by the design dive speed. While the initial condition for the upset specified in the rule is 1g level flight, protection is afforded for other inadvertent overspeed conditions as well. Section 25.335(b)(1) is intended as a conservative enveloping condition for potential overspeed conditions, including non-symmetric ones. To establish that potential overspeed conditions are enveloped, Bombardier must demonstrate that any reduced speed margin, based on the high-speed-protection system, will not be exceeded in inadvertent or gust-induced upsets resulting in initiation of the dive from non-symmetric attitudes; or that the airplane is protected, by the flight-control laws, from getting into non-symmetric upset conditions. Bombardier must conduct a demonstration that includes a comprehensive set of conditions, as described in these special conditions.

    These special conditions are necessary to address Bombardier's proposed high-speed-protection system. These special conditions identify various symmetric and non-symmetric maneuvers that will ensure that an appropriate design dive speed is established. Symmetric (pitching) maneuvers are specified in § 25.331, “Symmetric maneuvering conditions.” Non-symmetric maneuvers are specified in § 25.349, “Rolling conditions,” and in § 25.351, “Yaw maneuver conditions.”

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

    Applicability

    As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

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

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

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

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

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes.

    1. In lieu of compliance with § 25.335(b)(1), if the flight-control system includes functions that act automatically to initiate recovery before the end of the 20-second period specified in § 25.335(b)(1), VD/MD must be determined from the greater of the speeds resulting from special conditions 1(a) and 1(b), below. The speed increase occurring in these maneuvers may be calculated if reliable or conservative aerodynamic data are used.

    a. From an initial condition of stabilized flight at VC/MC, the airplane is upset so as to take up a new flight path 7.5 degrees below the initial path. Control application, up to full authority, is made to try to maintain this new flight path. Twenty seconds after initiating the upset, manual recovery is made at a load factor of 1.5g (0.5 acceleration increment), or such greater load factor that is automatically applied by the system with the pilot's pitch control neutral. Power, as specified in § 25.175(b)(1)(iv), is assumed until recovery is initiated, at which time power reduction and the use of pilot-controlled drag devices may be used.

    b. From a speed below VC/MC, with power to maintain stabilized level flight at this speed, the airplane is upset so as to accelerate through VC/MC at a flight path 15 degrees below the initial path (or at the steepest nose-down attitude that the system will permit with full control authority if less than 15 degrees). The pilot's controls may be in the neutral position after reaching VC/MC and before recovery is initiated. Recovery may be initiated three seconds after operation of the high-speed warning system by application of a load of 1.5g (0.5g acceleration increment), or such greater load factor that is automatically applied by the system with the pilot's pitch control neutral. Power may be reduced simultaneously. All other means of decelerating the airplane, the use of which is authorized up to the highest speed reached in the maneuver, may be used. The interval between successive pilot actions must not be less than one second.

    2. It must also be demonstrated that the speed margin, established as above, will not be exceeded in inadvertent or gust-induced upsets resulting in initiation of the dive from non-symmetric attitudes, unless the airplane is protected, by the flight-control laws, from getting into non-symmetric upset conditions. The upset maneuvers described in Advisory Circular 25-7C, “Flight Test Guide for Certification of Transport Category Airplanes,” section 8, paragraph 32, sub-paragraphs c(3)(a) and (b), may be used to comply with this requirement.

    3. The probability of any failure of the high-speed-protection system that would result in an airspeed exceeding those determined by special conditions 1 and 2, above, must be less than 10 5 per flight hour.

    4. Failures of the system must be annunciated to the pilots. Airplane flight-manual instructions must be provided that reduce the maximum operating speeds, VMO/MMO. With the system failed, the operating speed must be reduced to a value that maintains a speed margin between VMO/MMO and VD/MD, and that is consistent with showing compliance with § 25.335(b) without the benefit of the high-speed-protection system.

    5. Dispatch of the airplane with the high-speed-protection system inoperative could be allowed under an approved minimum equipment list that would require airplane flight-manual instructions to indicate reduced maximum operating speeds, as described in special condition 4, above. In addition, the flight-deck display of the reduced operating speeds, as well as the overspeed warning for exceeding those speeds, must be equivalent to that of the normal airplane with the high-speed-protection system operative. Also, it must be shown that no additional hazards are introduced with the high-speed-protection system inoperative.

    Issued in Renton, Washington, on August 11, 2016. Paul Bernado, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-19993 Filed 8-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-6359; Special Conditions No. 25-633-SC] Special Conditions: Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Airplane Electronic-System Security Protection From Authorized Internal Access AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Bombardier Inc. (Bombardier) Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes will have novel or unusual design features, specifically, digital systems architecture composed of several connected data networks that will have the capability to allow connectivity of the passenger-service computer systems to the airplane critical systems and data networks. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Bombardier on August 22, 2016. We must receive your comments by October 6, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-6359 using any of the following methods:

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

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

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Varun Khanna, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-1298; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

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

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

    Background

    On May 30, 2012, Bombardier applied for an amendment to type certificate no. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes currently approved under type certificate no. T00003NY, and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are ultra-long-range, executive-interior business jets.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in type certificate no. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

    In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

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

    Novel or Unusual Design Features

    The Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design feature:

    Digital systems architecture composed of several connected data networks. This network architecture and configuration may be used for, or interfaced with, a diverse set of functions, including:

    • Flight-safety-related control, communication, and navigation systems (airplane-control domain);

    • Operation and administrative support (operator-information-services domain); and

    • Passenger information and entertainment systems (passenger-entertainment domain).

    In addition, this digital systems architecture will have the capability to allow access to or by external network sources.

    Discussion

    The Model BD-700-2A12 and BD-700-2A13 airplane digital systems network architecture is different from existing production (and retrofitted) airplanes as it allows new kinds of user access to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. This proposed data-network design and integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane.

    The existing regulations and guidance material did not anticipate these types of system architectures or access to airplane systems. Furthermore, 14 CFR regulations, and current system safety-assessment policy and techniques, do not address potential security vulnerabilities that could be caused by unauthorized access to airplane data busses and servers. Therefore, these special conditions are issued to ensure that the security, integrity, and availability of airplane systems are not compromised by certain wired or wireless electronic connections between airplane data busses and networks.

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

    Applicability

    As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

    This action affects only certain novel or unusual design features on Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes. It is not a rule of general applicability.

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

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

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

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

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for the Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 airplanes.

    1. The applicant must ensure that the design provides isolation from, or airplane electronic system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, or other assets required for safe flight and operations.

    2. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post type certification modifications that may have an impact on the approved electronic system security safeguards.

    Issued in Renton, Washington, on August 11, 2016. Paul Bernado, Acting Manager, Transport Airplane Directorate Aircraft Certification Service.
    [FR Doc. 2016-19994 Filed 8-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-8029; Special Conditions No. 25-634-SC] Special Conditions: Garmin International, Beechcraft Corporation Model 400A Airplanes; Airplane Electronic-System Security Protection From Unauthorized External Access AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for the Beechcraft Corporation (Beechcraft) Model 400A airplane. This airplane, as modified by Garmin International (Garmin), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. These airplanes will have a digital-systems network architecture composed of several connected networks that may allow access to or by external computer systems and networks, and may otherwise result in airplane electronic-system security vulnerabilities without appropriate protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Garmin on August 22, 2016. We must receive your comments by October 6, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-8029 using any of the following methods:

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

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

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Varun Khanna, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-1298; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION:

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

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

    Comments Invited

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

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

    Background

    On February 13, 2014, Garmin applied for a supplemental type certificate to allow installation of digital-systems network architecture, composed of several connected networks that may allow access to or by external computer systems and networks, in Beechcraft Model 400A airplanes. The Model 400A airplane is a small, twin-engine, transport-category airplane with a maximum takeoff weight of 16,300 lbs and capable of carrying 7 to 9 passengers, plus 2 crew members.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Garmin must show that the Beechcraft Model 400A airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A16SW, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Beechcraft Model 400A airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

    In addition to the applicable airworthiness regulations and special conditions, the Beechcraft Model 400A airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

    Novel or Unusual Design Features

    The Beechcraft Model 400A airplanes will incorporate the following novel or unusual design features:

    The Garmin G5000, installed in the Beechcraft Model 400A airplane, may add wired and wireless access points to the networks of the Aircraft Control Domain and Airline Information Services Domain. This creates a potential for unauthorized persons to access the Aircraft Control Domain and Airline Information Services Domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user error, and intentional sabotage of airplane electronic assets (networks, systems, and databases) if not appropriately protected.

    Discussion

    The Garmin G5000 allows connection to airplane electronic systems and networks, and access from airplane external sources (e.g., operator networks, wireless devices, Internet connectivity, service-provider satellite communications, electronic flight bags, etc.) to the previously isolated airplane electronic assets. Airplane electronic assets include electronic equipment and systems, instruments, networks, servers, software and electronic components, field-loadable software and hardware applications, and databases. This proposed design may otherwise result in network security vulnerabilities from intentional or unintentional corruption of data and systems required for the safety, operation, and maintenance of the airplane if not appropriately protected. The existing regulations and guidance material did not anticipate this type of system architecture, or external wired and wireless electronic access to airplane electronic systems. Furthermore, regulations, and current system safety-assessment policy and techniques, do not address potential security vulnerabilities that could be caused by unauthorized access to airplane electronic systems and networks.

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

    Applicability

    As discussed above, these special conditions are applicable to the Beechcraft Model 400A airplane. Should Garmin apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16SW to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

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

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

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

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

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Beechcraft Model 400A airplanes modified by Garmin.

    1. The applicant must ensure that the airplane electronic systems are protected from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

    2. The applicant must ensure that electronic system-security threats are identified and assessed, and that effective electronic system-security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

    3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic system-security safeguards.

    Issued in Renton, Washington, on August 11, 2016. Paul Bernado, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-20000 Filed 8-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 165 [USCBP-2016-0053; CBP Dec. 16-11] RIN 1515-AE10 Investigation of Claims of Evasion of Antidumping and Countervailing Duties AGENCY:

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

    ACTION:

    Interim regulations; solicitation of comments.

    SUMMARY:

    In accordance with section 421 of the Trade Facilitation and Trade Enforcement Act of 2015, this rule amends the U.S. Customs and Border Protection regulations to set forth procedures for CBP to investigate claims of evasion of antidumping and countervailing duty orders.

    DATES:

    The interim rule is effective August 22, 2016; comments must be received by October 21, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP-2016-0053.

    Mail: Trade and Commercial Regulations Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.

    Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected during regular business days between the hours of 9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 325-0118.

    FOR FURTHER INFORMATION CONTACT:

    Kevin M. McCann, Chief, Analytical Communications Branch, Office of Trade, U.S. Customs and Border Protection, 202-863-6078.

    SUPPLEMENTARY INFORMATION:

    Public Participation

    Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to CBP in developing these regulations will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See ADDRESSES above for information on how to submit comments.

    Background

    On February 24, 2016, President Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which contains Title IV-Prevention of Evasion of Antidumping and Countervailing Duty Orders (short title “Enforce and Protect Act of 2015” or “EAPA”) (Pub. L. 114-125, 130 Stat. 122, 155, Feb. 24, 2016) (19 U.S.C. 4301 note). The EAPA establishes a formal process for CBP to investigate allegations of the evasion of AD/CVD orders. Section 421 of the EAPA requires that regulations be prescribed as necessary and within 180 days of TFTEA's enactment to implement the provisions of the EAPA that establish procedures for investigating claims of evasion of AD/CVD orders.

    Antidumping and Countervailing Duty Orders

    The antidumping (AD) law provides for increased duties on imported products that the United States International Trade Commission (ITC) has found to have materially injured or threatened with material injury a domestic industry and that the United States Department of Commerce (Commerce) has found to have been sold in the U.S. market at prices below fair market value. The countervailing duty (CVD) law provides for increased duties on imported products that the ITC has found to have materially injured or threatened with material injury a domestic industry and that Commerce has found to have benefitted from a countervailable subsidy from a foreign government or public entity. Statutory authority for AD and CVD investigations derives from Title VII of the Tariff Act of 1930, as amended, 19 U.S.C. 1671 and 1673.

    If both Commerce and the ITC issue affirmative final determinations, Commerce issues an AD and/or CVD order that establishes cash deposit rates for the additional duties on entries of imported merchandise subject to the order. Those entries will be liquidated at the cash deposit rate, unless interested parties request an administrative review to establish a revised and final dumping or countervailing duty rate. U.S. Customs and Border Protection is responsible for the collection of cash deposits and final duties on imports of subject merchandise.

    Evasion of Antidumping and Countervailing Duty Orders

    Evasion refers to entering merchandise into the customs territory of the United States for consumption by an act or omission that is material and false, and which results in antidumping or countervailing duties being reduced or not applied to or collected on such merchandise.

    Examples of evasion could include, but are not limited to, the misrepresentation of the merchandise's true country of origin (e.g., through fraudulent country of origin markings on the product itself or false sales), false or incorrect shipping and entry documentation, or misreporting of the merchandise's physical characteristics. CBP is responsible for ensuring that the appropriate duties are collected on imports of merchandise. U.S. Immigration and Customs Enforcement (ICE) is responsible for conducting criminal investigations of the evasion of AD/CVD orders.

    Under current customs laws, CBP can take enforcement actions against the evasion of AD/CVD orders, which include the assessment of civil penalties against importers who evade such orders. However, allegations as to evasion submitted by private parties prior to the implementation of the EAPA, did not afford the parties an opportunity to participate in the investigation nor did CBP have an obligation to notify parties that submitted allegations of evasion as to the outcome of CBP's review.

    Enforce and Protect Act of 2015

    Section 421 of the EAPA amends the Tariff Act of 1930 by creating a new framework for CBP to investigate allegations of evasion of AD/CVD orders, under newly created section 517 (“Procedures for Investigating Claims of Evasion of Antidumping and Countervailing Duty Orders”).

    Section 421 of the EAPA requires the Commissioner of U.S. Customs and Border Protection (the Commissioner) to initiate an investigation within 15 business days of receipt of a properly filed allegation from an interested party or referral from another Federal agency (hereinafter referred to as a “request for an investigation” from or by another Federal agency) that reasonably suggests that merchandise covered by an AD/CVD order has entered the customs territory of the United States through evasion.

    Under the EAPA, when CBP receives properly filed allegations from interested parties that merchandise covered by an AD/CVD order has entered the United States through evasion, or receives requests from Federal agencies for an investigation, the statute requires CBP to take certain actions within specified timeframes. The EAPA requires CBP to determine, not later than 300 calendar days (or 360 calendar days in extraordinarily complicated cases) after the date of initiation of an EAPA investigation, whether there is substantial evidence that merchandise covered by an AD/CVD order was entered into the customs territory of the United States through evasion.

    The EAPA authorizes CBP to collect such information as is necessary to make the determination through such methods as CBP considers appropriate. One such method specifically mentioned by the EAPA is the use of questionnaires, which can be used to request information from the interested party making the allegation and the government of the foreign country from which the allegedly covered merchandise was exported, as well as the importer, foreign producer or exporter of the allegedly covered merchandise. The EAPA provides that pursuant to sections 412(b) and 421(a), CBP may make an adverse inference if the importer, foreign producer or exporter of the merchandise under investigation, or the interested party making the allegation, did not act to the best of its ability to provide the information requested by CBP. The EAPA further requires CBP, no later than five business days after making a determination, to communicate the determination to the interested party who made an allegation that initiated the evasion investigation.

    If CBP makes an affirmative determination of evasion, CBP will: (1) Suspend the liquidation of unliquidated entries of the covered merchandise that is subject to the determination; (2) extend the period for liquidating the unliquidated entries of covered merchandise that entered before the initiation of the investigation; (3) when necessary, notify Commerce of the determination and request that Commerce determine the appropriate duty rates for such covered merchandise; (4) require importers of covered merchandise to post cash deposits and assess duties on the covered merchandise; and/or (5) take such additional enforcement measures as CBP deems appropriate, including (but not limited to) modifying CBP's procedures for identifying future evasion, reliquidating entries as provided by law, and referring the matter to ICE for a possible civil or criminal investigation.

    In order to ensure that appropriate duties can be collected on entries of covered merchandise made during the pendency of an EAPA investigation, the EAPA provides for an interim measures mechanism. Under this mechanism, CBP will determine within 90 calendar days of initiation of an EAPA investigation whether there exists reasonable suspicion that covered merchandise subject to an allegation was entered through evasion. If CBP determines that such reasonable suspicion exists, CBP will: (1) Suspend the liquidation of unliquidated entries of the covered merchandise entered after the date of initiation; (2) extend the period for liquidating the unliquidated entries of covered merchandise that entered before the initiation of the investigation; and (3) take any additional measures necessary to protect the ability to collect appropriate duties, which may include requiring a single transaction bond or posting cash deposits or reliquidating entries as provided by law with respect to entries of the covered merchandise. As provided for in section 517(b)(6) of the Tariff Act of 1930, as amended by the EAPA (19 U.S.C. 1517(b)(6)), if CBP determines during the course of an EAPA investigation that the merchandise being investigated poses a health or safety risk, CBP will notify the appropriate Federal agencies of that risk and will exercise its administrative powers, as appropriate.

    The EAPA provides a period of 30 business days after a determination for the interested party who made the allegation of evasion or the person determined to have entered the covered merchandise subject to the evasion determination to request a de novo administrative review. And not later than 60 business days after such a request for a review of an initial determination is properly filed, CBP must complete the review and issue a final administrative determination.

    Section 517(g) of the Tariff Act of 1930, as amended by the EAPA (19 U.S.C. 1517(g)), provides that judicial review of the final administrative determination and the original determination as to evasion will be available to the party alleging evasion or the party found to have entered merchandise subject to the investigation through evasion. A request for such judicial review must be made not later than 30 business days after completion of the final administrative determination. The request for judicial review must be made to the U.S. Court of International Trade (CIT).

    In accordance with section 421 of TFTEA requiring that regulations be prescribed as necessary to implement these procedures, CBP is amending title 19 of the Code of Federal Regulations to create new part 165 setting forth procedures for investigating claims of evasion of AD and CVD orders. In these regulations, CBP has endeavored to make the proceedings under the EAPA as transparent as possible and to provide for full participation and engagement by all parties involved in an EAPA proceeding.

    New part 165 is drafted with a scope section followed by four subparts: General Provisions; Initiation of Investigations; Investigation Procedures; and Administrative Review of Determinations.

    Discussion of New Part 165 Scope

    Section 165.0 briefly describes the nature of EAPA investigations and the types of requirements that are set forth in this part. Investigations under the EAPA will be conducted by CBP's Trade Remedy Law Enforcement Directorate (TRLED) which has been established consistent with section 411 of the EAPA. It should be noted that investigations under the EAPA are not the exclusive means, or only statutory authority, by which CBP can investigate allegations by the public or requests by other Federal agencies with respect to the evasion of AD/CVD orders. For example, the public currently has the option to make more general allegations of evasion through CBP's “e-Allegations” system, an official online portal for the public to report violations of the trade laws. This current functionality will remain in e-Allegations, but e-Allegations will also have another option for filing allegations of evasion under the EAPA.

    Subpart A—General Provisions

    Section 165.1 lists definitional terms that are used throughout the new part. It is noted that the definition of “interested party” includes not only the importer of the covered merchandise who is alleged to have engaged in evasion, but also importers of the covered merchandise who wish to bring allegations against competing importers. The term “interested party” does not include other Federal agencies. CBP also notes that the term “domestic like product” is referenced in the definition of “interested party.” CBP will rely on the definition of this term, as it is applied by the U.S. International Trade Commission, pursuant to 19 U.S.C. 1677(10).

    Section 165.2 specifies that entries that may be the subject of an allegation under § 165.11 or of a request from a Federal agency made under § 165.14 are those entries of allegedly covered merchandise made within one year prior to the receipt of such an allegation or such a request from a Federal agency. CBP is specifying the one-year period for an EAPA investigation in order that the information required for conducting the investigation and rendering a timely determination will be current and readily available. This does not limit CBP's authority, however, to act under any other provision of law with respect to information obtained during an EAPA investigation. For example, CBP has the right to assess penalties pursuant to 19 U.S.C. 1592 in appropriate cases involving the evasion of AD and CVD orders.

    Section 165.3 identifies the persons that may make submissions on behalf of interested parties and specifies when power of attorney documentation is required. Agents may act on behalf of an interested party in an EAPA proceeding, including an importer against whom an allegation has been brought. Also, an affiliate of an importer may file documents on the importer's behalf for the EAPA proceedings, but nonetheless must be authorized to act as an agent by means of a power of attorney. A power of attorney is required when an agent who is not an attorney at law is used to make filings under the EAPA.

    Section 165.4 addresses how an interested party that makes a submission to CBP in an EAPA proceeding can protect confidential business information. Examples of the kinds of information that may be considered business confidential include: Trade secrets concerning the nature of a product or production process; production costs and other pricing information; and lists of customers, distributors, and suppliers. This section also specifies what information must be provided to CBP as public information in order to facilitate the consolidation of allegations and administration of the proceedings. This section was included in order to protect business confidential information while at the same time ensuring transparency so that an alleged evader will be notified of the allegation and parties to the investigation can participate in the proceeding. Finally, as there is no administrative protective order (APO) process provided for in the EAPA, parties involved in an EAPA proceeding are advised not to submit information to CBP that they obtained exclusively under a protective order from another agency, court, or proceeding unless the scope of that protective order explicitly covers the EAPA investigation or proceeding under consideration. Accordingly, parties are advised to exercise caution when submitting information to CBP in an EAPA proceeding.

    Section 165.5 sets forth the scope of and general means by which CBP will obtain information for EAPA proceedings (which must be submitted electronically). CBP requires that only English language or English language translations of written submissions will be accepted. Oral discussions or communications with CBP will not be considered part of the record unless memorialized in written submissions. During CBP's investigation, it is possible that there will be other parties from whom CBP will solicit information and that CBP will put that information on the record. Those parties (who are not parties to the investigation as defined in § 165.1), however, do not have a right to participate in the proceedings. Additionally, CBP may, for good cause, grant requests for extensions of regulatory (but not statutory) deadlines imposed under this part.

    Section 165.6 provides that CBP may draw adverse inferences both in an EAPA investigation and in an administrative review of an evasion determination when the party making the allegation, the alleged evader, a foreign producer or exporter fails to cooperate and comply to the best of its ability with a request for information made by CBP. It also establishes that adverse inferences may be based on the allegation of evasion; other CBP investigations, proceedings or other actions regarding evasion; or any other available information. CBP will not apply an adverse inference against a foreign government if the foreign government does not respond to a request for information.

    Section 165.7 obligates interested parties to report to CBP any knowledge or reason to suspect that the covered merchandise may pose a health or safety risk to U.S. consumers. It also requires CBP to report to the appropriate Federal agencies any health or safety risk that the covered merchandise may pose to U.S. consumers.

    Subpart B—Initiation of Investigations

    Section 165.11 provides the criteria for filing an allegation of evasion pursuant to the EAPA and the specific information that must be contained in an allegation. Each allegation may only concern one importer (because business confidential information may be involved in an EAPA proceeding), although an interested party may file multiple allegations.

    Section 165.11 authorizes CBP to provide technical assistance and guidance to small businesses (and to other parties as resources permit) that consider filing an EAPA allegation. It also specifies that technical assistance is available prior to the submission of an allegation to CBP in order to ensure that the filing requirements are satisfied. Any technical assistance and guidance that are provided, however, will not become part of the record, and the fact that assistance or guidance was provided does not guarantee that CBP will proceed to initiate an EAPA investigation. Moreover, such technical assistance and guidance provided by CBP does not include providing research assistance to support an allegation of evasion or to identify potential parties that might be involved in the evasion of AD or CVD orders.

    Section 165.12 provides that the date of receipt of a properly filed allegation is the date that CBP determines that the EAPA allegation contains all the information and certifications required in § 165.11 of this part and transmits notice thereof together with a CBP-assigned control number to the party that filed the allegation. CBP will promptly review each allegation as filed for sufficiency. If an allegation is found to be insufficient, the party who filed the allegation will be notified of the insufficiencies and be given the opportunity to remedy them. The CBP-assigned control number should be used to monitor the status of an allegation throughout the pendency of the EAPA proceeding. CBP has 15 business days from the date of receipt to determine whether to initiate an investigation under the EAPA. A party filing an allegation may withdraw the allegation by submitting a request to withdraw the allegation to the designated email address specified by CBP. Decisions regarding whether to initiate an investigation under the EAPA will be effectuated by CBP's TRLED. Such decisions are not subject to administrative or judicial review. In the event that an allegation is withdrawn, CBP may continue to investigate (other than under the EAPA) whether evasion has occurred as originally alleged using but not limited to any information obtained (including from the party who filed the allegation) prior to the date of the request to withdraw the allegation.

    Section 165.13 allows for the consolidation of multiple allegations against one or more importers and sets forth criteria for that purpose. It also indicates that the time period to make a decision on whether to investigate is triggered by the first properly filed allegation received by CBP.

    As discussed above, requests for an investigation relating to potential evasion of AD/CVD orders may be filed by other Federal agencies with CBP. Section 165.14 sets forth the procedures for such requests for an investigation. Federal agencies are not considered a “party to the investigation” as defined in § 165.1. It should be noted, however, that other Federal agencies may continue to use methods other than under the EAPA, as permitted under the law, to inform CBP of possible instances of evasion.

    Section 165.15 specifies that CBP will decide if an investigation is warranted based on whether the allegation made under § 165.11 or a request from a Federal agency made under § 165.14 reasonably suggests that evasion has occurred (i.e., the covered merchandise at issue has been entered into the customs territory of the United States through evasion). The deadline to decide whether to initiate an investigation is 15 business days from the date of receipt by CBP of a properly filed allegation or request. If CBP determines that it will initiate an investigation, it will notify all known parties to the investigation no later than 95 calendar days after the initiation of the investigation. CBP will use this 95 calendar-day period in order to investigate the allegation. This timeframe for notification takes into account the dual considerations of transparency and the need to provide adequate time for CBP's investigatory process. Alternatively, if CBP determines that it will not initiate an investigation, it will notify the interested party who filed the allegation within five business days of that determination.

    Section 165.16 specifies that CBP may, at its discretion, refer the issue to the Department of Commerce if there is uncertainty as to whether the goods that are the subject of the allegation are within the scope of the applicable AD/CVD order(s). It also directs that the parties to the investigation must be advised of the date of this referral and the time taken by Commerce to decide this issue does not count against any of the deadlines for the EAPA investigation (i.e., the referral to Commerce tolls these deadlines).

    Subpart C—Investigation Procedures

    As described in § 165.21, CBP will maintain an electronic administrative record for purposes of making a determination as to evasion and conducting an administrative review of the determination as described in subpart D of this part.

    Section 165.22 provides that the determination as to whether evasion occurred will be made within 300 calendar days from the date of initiation of the investigation unless, for an extraordinarily complicated case, CBP, at its discretion, extends the deadline by an additional 60 calendar days. This section also sets forth the statutory criteria for extraordinarily complicated cases. Notice of such an extension will be provided to all parties to the investigation. CBP will strive to ensure compliance with these time periods during the course of an investigation. If CBP does not make a determination by the deadline, however, this will not result in a deemed decision with respect to whether or not evasion occurred.

    Section 165.23 sets forth the types of and requirements for the submission of factual information. This information will become part of the administrative record. CBP may obtain factual information in a variety of ways. Parties to the investigation may voluntarily submit information to CBP or may provide information in response to requests by CBP (including in response to questionnaires). Interested parties who are not parties to the investigation may provide information only in response to requests by CBP.

    Section 165.24 provides that no later than 90 calendar days after the initiation of an investigation, CBP will suspend the liquidation of entries made on or after the date of initiation of the investigation and extend the liquidation for entries made prior to the date of initiation of the investigation if there is reasonable suspicion that evasion has taken place. CBP will give notice to the parties to the investigation of any interim measures it takes within five business days after it takes such measures.

    Section 165.25 specifies that, at its discretion, CBP has the authority to conduct verifications of information collected under § 165.23 of this part, in the United States or in foreign countries as is necessary to make its determination. Verifications in foreign countries will be conducted as appropriate and consistent with any agreements or memoranda relating to such activities with the foreign government in whose country the proposed verification is scheduled to occur.

    Section 165.26 deals with the ability of parties to the investigation to submit written arguments to CBP in order that they may actively participate in an EAPA proceeding. It provides that the parties to the investigation may submit written arguments to CBP and must serve all other parties to the investigation by an email message or through any other method approved or designated by CBP with a public version of the written arguments. Parties to the investigation receiving a written argument may file a response within 15 calendar days of the filing of the written argument. The party filing a written response must provide it to CBP and serve a public version on all other parties to the investigation via an email message or through any other method approved or designated by CBP.

    Section 165.27 provides that upon conclusion of the investigation, CBP will determine whether there is substantial evidence based upon the record that evasion of an AD/CVD order has occurred. Within five business days of CBP's initial determination as to evasion, CBP will issue notice of its determination to the interested party or parties who made the allegation and to the importer alleged to have evaded an AD/CVD order. This section also addresses action by CBP in the event of a negative determination.

    Section 165.28 discusses what actions CBP may take if there is an affirmative determination as to evasion.

    Subpart D—Administrative Review of Determinations

    Subpart D specifies the requirements for requesting an administrative review of an initial determination. Under § 165.41, any party to the investigation has up to 30 business days after the date the initial determination is issued to request an administrative review of that determination by Regulations and Rulings, Office of Trade. Parties seeking review of the initial determination must serve all other parties to the investigation with a public version of the request via an email message or through any other method approved or designated by CBP.

    Under § 165.42, parties to the investigation are given an opportunity to submit responses to the request for administrative review.

    Section 165.43 provides that any requests for review and responses to requests for review will remain part of the administrative record and cannot be withdrawn.

    Section 165.44 provides that Regulations and Rulings may request additional written information from the parties to the investigation at any time during the administrative review process.

    Section 165.45 describes that under an administrative review the initial determination will be reviewed de novo. The final administrative determination will be issued within 60 business days from the date of request for review. The review will be based upon the administrative record developed during the initial investigation period and any requests for administrative review and responses to those requests.

    Section 165.46 states that Regulations and Rulings will issue a final administrative determination to all parties to the investigation. The final administrative determination is subject to judicial review in accordance with section 421 of the EAPA.

    Finally, § 165.47 notifies the public that nothing within this part precludes CBP from taking any action authorized under the law, such as assessing penalties under 19 U.S.C. 1592.

    Inapplicability of Notice and Delayed Effective Date Requirements

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), agencies generally are required to publish a notice of proposed rulemaking in the Federal Register that solicits public comments on the proposed regulatory amendments and consider public comments in deciding on the content of the final amendments. Section 553(b)(A) of the APA, however, provides that the standard prior notice and comment procedures do not apply to an agency rulemaking to the extent that the rule is a rule of procedure.

    The substantive provisions of the EAPA have been established by Congress, and these regulations set forth the procedures for implementing the statute and do not include substantive requirements. Although CBP could issue this as a final rule without prior notice and comment, CBP is soliciting comments in this interim rule and will consider all comments received before issuing a final rule.

    Statutory and Regulatory Requirements Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this regulation.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

    Paperwork Reduction Act

    An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.

    OMB approved collection 1651-0131 will be amended to reflect the additional respondents for e-Allegations and the three new questionnaires for EAPA requirements as described above in accordance with 19 CFR 165.5(a) and 165.23(a). We estimate that this rule will result in an additional 419 responses annually and an additional 9,386 burden hours. The revision to the information collection includes 44 additional e-Allegations which is in addition to the previously approved 1,600 total e-Allegation submissions annually (for a total of 1,644 e-Allegation submissions). It also establishes new questionnaires for allegers of AD/CVD violations, alleged evaders of AD/CVD orders, and other interested parties, such as the foreign producer or exporter or a foreign government. This revision to this information collection includes 150 new alleger questionnaires annually, 150 new alleged evader questionnaires annually, and 75 new other interested party questionnaires annually. The other interested party could be a foreign producer or exporter or foreign government, or any other interested party. Collection 1651-0131 will be revised to reflect the increased burden hours for each additional e-Allegation submission and EAPA questionnaire added to e-Allegations as follows:

    E-Allegations

    Estimated number of annual respondents: 44.

    Estimated number of annual responses: 44.

    Estimated time burden per response: 15 minutes (.25 hours).

    Estimated total annual time burden: 11 hours.

    Alleger Questionnaire

    Estimated number of annual respondents: 150.

    Estimated number of annual responses: 150.

    Estimated time burden per response: 25 hours.

    Estimated total annual time burden: 3,750 hours.

    Alleged Evader Questionnaire

    Estimated number of annual respondents: 150.

    Estimated number of annual responses: 150.

    Estimated time burden per response: 25 hours.

    Estimated total annual time burden: 3,750 hours.

    Other Interested Party Questionnaire

    Estimated number of annual respondents: 75.

    Estimated number of annual responses: 75.

    Estimated time burden per response: 25 hours.

    Estimated total annual time burden: 1,875 hours.

    Comments concerning the collections of information and the accuracy of the estimated annual burden, and suggestions for reducing that burden, should be directed to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Trade and Commercial Regulations Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.

    Signing Authority

    This document is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his or her delegate) to approve regulations related to certain customs revenue functions.

    List of Subjects in 19 CFR Part 165

    Administrative practice and procedure, Business and industry, Customs duties and inspection.

    Amendments to the Regulations For the reasons set forth above, chapter I of title 19, Code of Federal Regulations (19 CFR chapter I), is amended by adding part 165 to read as follows: PART 165—INVESTIGATION OF CLAIMS OF EVASION OF ANTIDUMPING AND COUNTERVAILING DUTIES Sec. 165.0 Scope. Subpart A—General Provisions 165.1 Definitions. 165.2 Entries subject to this part. 165.3 Power of attorney. 165.4 Release of information provided by interested parties. 165.5 Obtaining and submitting information. 165.6 Adverse inferences. 165.7 Protection of public health and safety. Subpart B—Initiation of Investigations 165.11 Allegations by interested parties. 165.12 Receipt of allegations. 165.13 Consolidation of allegations. 165.14 Other Federal agency requests for investigations. 165.15 Initiation of investigations. 165.16 Referrals to Department of Commerce. Subpart C—Investigation Procedures 165.21 Administrative record. 165.22 Time for investigation. 165.23 Submission of factual information. 165.24 Interim measures. 165.25 Verifications of information. 165.26 Written argument. 165.27 Determination as to evasion. 165.28 Assessment as to duties owed; other actions. Subpart D—Administrative Review of Determinations 165.41 Filing a request for review of the initial determination. 165.42 Responses to requests for administrative review. 165.43 Withdrawal. 165.44 Additional information. 165.45 Standard for administrative review. 165.46 Final administrative determination. 165.47 Potential penalties and other actions. Authority:

    19 U.S.C. 66, 1481, 1484, 1508, 1517 (as added by Pub. L. 114-125, 130 Stat. 122, 155 (19 U.S.C. 4301 note)), 1623, 1624, 1671, 1673.

    § 165.0 Scope.

    This part relates to allegations by the public and requests from Federal agencies for an investigation regarding the evasion of antidumping (AD) and countervailing duty (CVD) orders and the procedures by which CBP investigates such claims consistent with the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which contains Title IV-Prevention of Evasion of Antidumping and Countervailing Duty Orders (short title “Enforce and Protect Act of 2015” or “EAPA”) (Pub. L. 114-125, 130 Stat. 122, 155, Feb. 24, 2016) (19 U.S.C. 4301 note). This part includes the requirements for the filing of allegations and requests for investigations, the investigation procedures, and administrative review of determinations as to evasion of AD/CVD orders under the EAPA. The procedures under this part are not the exclusive manner by which CBP may receive allegations or requests for an investigation from Federal agencies or investigate such allegations or requests with respect to the evasion of AD/CVD orders. An investigation as described in this part, if initiated by CBP, does not preclude CBP or any other government entity from initiating any other investigation or proceeding pursuant to any other provision of law, including proceedings initiated under 19 U.S.C. 1592.

    Subpart A—General Provisions
    § 165.1 Definitions.

    As used in this part, the following terms will have the meanings indicated unless either the context in which they are used requires a different meaning or a different definition is prescribed for a particular section of this part:

    Allegation. The term “allegation” refers to a filing with CBP under § 165.11 by an interested party that alleges an act of evasion by an importer of AD/CVD orders.

    AD. The term “AD” refers to antidumping duty, consistent with section 736, Tariff Act of 1930, as amended (19 U.S.C. 1673e).

    AD/CVD. The term “AD/CVD” refers to antidumping/countervailing duty, as these terms are defined in this section.

    Covered merchandise. The term “covered merchandise” means merchandise that is subject to a CVD order issued under section 706, Tariff Act of 1930, as amended (19 U.S.C. 1671e), and/or an AD order issued under section 736, Tariff Act of 1930, as amended (19 U.S.C. 1673e).

    CVD. The term “CVD” refers to countervailing duty, consistent with section 706, Tariff Act of 1930, as amended (19 U.S.C. 1671e).

    Enter or entry. The terms “enter” and “entry” refer to the entry for consumption, or withdrawal from warehouse for consumption, of merchandise in the customs territory of the United States, see § 101.1 of this chapter, or to the filing with CBP of the necessary documentation to withdraw merchandise from a duty-deferral program in the United States for exportation to Canada or Mexico or for entry into a duty-deferral program in Canada or Mexico, see §§ 141.0a(f) and 181.53 of this chapter.

    Evade or evasion. The terms “evade” and “evasion” refer to the entry of covered merchandise into the customs territory of the United States for consumption by means of any document or electronically transmitted data or information, written or oral statement, or act that is material and false, or any omission that is material and that results in any cash deposit or other security or any amount of applicable antidumping or countervailing duties being reduced or not being applied with respect to the covered merchandise.

    Interested party. The term “interested party” in this part refers only to the following:

    (1) A foreign manufacturer, producer, or exporter, or any importer (not limited to importers of record and including the party against whom the allegation is brought), of covered merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise;

    (2) A manufacturer, producer, or wholesaler in the United States of a domestic like product;

    (3) A certified union or recognized union or group of workers that is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a domestic like product;

    (4) A trade or business association a majority of the members of which manufacture, produce, or wholesale a domestic like product in the United States;

    (5) An association a majority of the members of which is composed of interested parties described in paragraphs (2), (3), and (4) of this definition with respect to a domestic like product; or,

    (6) If the covered merchandise is a processed agricultural product, as defined in 19 U.S.C. 1677(4)(E), a coalition or trade association that is representative of any of the following: processors; processors and producers; or processors and growers.

    Investigation. The term “investigation” refers to the CBP administrative process described in subpart C of this part, and is a formal investigation within the meaning of section 592(c)(4), Tariff Act of 1930, as amended (19 U.S.C. 1592(c)(4)).

    Parties to the investigation. The phrase “parties to the investigation” means the interested party (or interested parties, in the case of consolidation pursuant to § 165.13) who filed the allegation of evasion and the importer (or importers, in the case of consolidation pursuant to § 165.13) who allegedly engaged in evasion. In the case of investigations initiated based upon a request from a Federal agency, parties to the investigation only refers to the importer or importers who allegedly engaged in evasion, and not the Federal agency.

    Regulations and Rulings. The term “Regulations and Rulings” means the Executive

    Director, Regulations and Rulings, Office of Trade, or his or her designee.

    TRLED. The term “TRLED” refers to the Trade Remedy Law Enforcement Directorate, Office of Trade, that conducts the investigation of alleged evasion under this part, and that was established as required by section 411 of the EAPA.

    § 165.2 Entries subject to this part.

    Entries that may be the subject of an allegation made under § 165.11 or a request for an investigation under § 165.14 are those entries of allegedly covered merchandise made within one year before the receipt of an allegation under § 165.11 or of a request for an investigation under § 165.14. In addition, at its discretion, CBP may investigate other entries of such covered merchandise.

    § 165.3 Power of attorney.

    (a) When required. Any submission made under this part other than by a principal or its employees may be filed by a person acting as agent or attorney in fact for the principal; a power of attorney must specifically authorize such person to make, sign, and file the submission or grant unlimited authority to such person.

    (b) Exception. No power of attorney is required for an attorney at law to act as agent or attorney for the principal. The signing of a submission as agent or attorney for the principal by the attorney at law will be considered a declaration by the attorney that the attorney is currently an active member in good standing of the highest court of a state, possession, territory, commonwealth, or the District of Columbia, and has been authorized to sign and file the submission for the principal.

    (c) Execution—(1) Corporation. A corporate power of attorney to file the submissions described in paragraph (a) of this section must be signed by a duly authorized officer or employee of the corporation.

    (2) Partnership. A partnership power of attorney to file the submissions described in paragraph (a) of this section must be signed by at least one member in the name of the partnership or by at least one duly authorized employee of the partnership, provided the power recites the name(s) of all of the members.

    (3) Other persons. A power of attorney filed by a person other than a corporation or partnership must be signed by that person or an employee of that person who has the legal authority to act on that person's behalf when filing the submissions described in paragraph (a) of this section.

    (d) Revocation. Any power of attorney will be subject to revocation at any time by written notice given to and received by CBP, Office of Trade.

    (e) Proof. CBP will require proof of execution of a power of attorney, where applicable, the first time that an agent makes a submission on behalf of any interested party during an investigation or administrative review of a determination as to evasion. CBP may require proof of authority to execute a power of attorney pursuant to paragraph (c) of this section, at any point during the proceedings described in this part.

    § 165.4 Release of information provided by interested parties.

    (a) Claim for business confidential treatment. Any interested party that makes a submission to CBP in connection with an investigation under this part, including for its initiation and administrative review, may request that CBP treat any part of the submission as business confidential information except for the information specified in paragraph (c) of this section. Business confidential treatment will be granted if the requirements of this section are satisfied and the information for which protection is sought consists of trade secrets and commercial or financial information obtained from any person, which is privileged or confidential in accordance with 5 U.S.C. 552(b)(4).

    (1) Identification of business confidential information. An interested party submitting information must identify the information for which business confidential treatment is claimed by enclosing the claimed confidential information within single brackets. The first page of any submission containing business confidential information must clearly state that the submission contains business confidential information. The submitting interested party must also provide with the claimed business confidential information an explanation of why each item of bracketed information is entitled to business confidential treatment.

    (2) Public version. An interested party filing a submission containing claimed business confidential information must also file a public version of the submission. The public version must be filed on the same date as the business confidential version and contain a summary of the bracketed information in sufficient detail to permit a reasonable understanding of the substance of the information. If the submitting interested party claims that summarization is not possible, the claim must be accompanied by a full explanation of the reasons supporting that claim. The public version must be clearly marked as a public version on the first page.

    (b) Nonconforming submissions. CBP will reject a submission that includes a request for business confidential treatment but does not meet the requirements of paragraph (a) of this section.

    (1) Notice of rejection. If CBP determines that the claim of confidentiality is nonconforming, it will treat the relevant portion of the submission as business confidential information until the appropriate corrective action is taken or the submission is rejected.

    (2) Corrective action. The submitting interested party may take any of the following actions within two business days after receiving CBP's notice of rejection:

    (i) Correct the problems and resubmit the information by an email message or through any other method approved or designated by CBP;

    (ii) If CBP denies a request for business confidential treatment, agree to have the information in question treated as public information;

    (iii) Submit other material concerning the subject matter in lieu of the rejected information.

    (3) Effects of rejection. If the submitting interested party does not take any of the actions in paragraph (b)(2) of this section, CBP will not consider the rejected submission and, if applicable, adverse inferences may be drawn pursuant to § 165.6.

    (c) Information that will not be protected as confidential. The following information provided by a party to the investigation in an allegation of evasion will not be protected as business confidential information and will be treated as public pursuant to the certification of informed consent referenced in § 165.11(c):

    (1) Name of the party to the investigation providing the information and identification of the agent filing on its behalf, if any, and email address for communication and service purposes;

    (2) Specification as to the basis upon which the party making the allegation qualifies as an interested party as defined in § 165.1;

    (3) Name and address of importer against whom the allegation is brought;

    (4) Description of covered merchandise; and

    (5) Applicable AD/CVD orders.

    (d) Certification. In accordance with paragraph (a)(2) of this section, when providing a public version of their submissions, interested parties must certify that the information they are providing is either their own information (i.e., information from their own business records and not business confidential information of another entity) or information that was publicly obtained or in the public domain.

    (e) Information placed on the record by CBP. Any information that CBP places on the administrative record, when obtained other than from an interested party subject to the requirements of this section, will include a public summary of the business confidential information as described in paragraph (a)(2) of this section, when applicable.

    § 165.5 Obtaining and submitting information.

    (a) Obtaining of information by CBP. In obtaining information necessary to carry out its functions and duties under this part, CBP may employ any means authorized by law. In general, CBP will obtain information from its own files, from other agencies of the United States Government, through questionnaires and correspondence, and through field work by its officials.

    (b) Submissions to CBP. The following requirements pertain to all parties who knowingly make submissions covered in this part:

    (1) Form. All submissions to CBP must be in writing in the English language or accompanied by an adequate English language translation as they will be part of the record for proceedings and determinations covered in this part. Oral discussions or communications with CBP will not be considered part of the record, unless they are memorialized in a written document that is placed on the record. All submissions must be made electronically to the designated email address specified by CBP for purposes of the investigation or through any other method approved or designated by CBP.

    (2) Certifications. Every written submission made to CBP by an interested party under this part must be accompanied by the following certifications from the person making the submission:

    (i) “On behalf of the party making this submission, I certify that all statements in this submission (and any attachments) are accurate and true to the best of my knowledge and belief.”

    (ii) “On behalf of the party making this submission, I certify that any information for which I have not requested business confidential treatment pursuant to 19 CFR 165.4(a), may be released for public consumption.”

    (iii) “On behalf of the party making this submission, I certify that I will advise CBP promptly of any knowledge of or reason to suspect that the covered merchandise poses any health or safety risk to U.S. consumers pursuant to 19 CFR 165.7(a).”

    (3) False statement. Any interested party that provides a material false statement or makes a material omission or otherwise attempts to conceal material facts at any point in the proceedings may be subject to adverse inferences (see § 165.6) and prosecution pursuant to 18 U.S.C. 1001.

    (c) Compliance with CBP time limits—(1) Requests for extensions. CBP may, for good cause, extend any regulatory time limit if a party requests an extension in a separate, stand-alone submission and states the reasons for the request. Such requests must be submitted no less than three business days before the time limit expires unless there are extraordinary circumstances. An extraordinary circumstance is an unexpected event that could not have been prevented even if reasonable measures had been taken. It is within CBP's reasonable discretion to determine what constitutes extraordinary circumstances, what constitutes good cause, and to grant or deny a request for an extension.

    (2) Rejection of untimely submissions. If a submission is untimely filed, then CBP will not consider or retain it in the administrative record and adverse inferences may be applied, if applicable.

    § 165.6 Adverse inferences.

    (a) In general. If the party to the investigation that filed an allegation, the importer, or the foreign producer or exporter of the covered merchandise fails to cooperate and comply to the best of its ability with a request for information made by CBP, CBP may apply an inference adverse to the interests of that party in selecting from among the facts otherwise available to make the determination as to evasion pursuant to § 165.27 and subpart D of this part.

    (b) Other adverse inferences. CBP may also apply an inference adverse to the interests of a party based on a prior determination in another CBP investigation, proceeding, or action that involves evasion with respect to AD/CVD orders, or any other available information.

    (c) Application. An adverse inference described in this section may be used with respect to the importer of the covered merchandise, or the foreign producer or exporter of the covered merchandise without regard to whether another party involved in the same transaction or transactions under examination has provided the information sought by CBP, such as import or export documentation.

    § 165.7 Protection of public health and safety.

    (a) Notification to CBP. Any interested party, including an importer, must promptly notify CBP if it has knowledge or reason to suspect that the covered merchandise may pose a health or safety risk to U.S. consumers at any point during the proceedings described in this part.

    (b) Transmission by CBP. During the course of an investigation or administrative review of a determination as to evasion under this part, CBP will consider whether the covered merchandise may pose a health or safety risk to U.S. consumers and will take into account any notification received under paragraph (a) of this section. CBP will promptly transmit information to the appropriate Federal agencies for purposes of mitigating the risk and will exercise its administrative powers, as appropriate.

    Subpart B—Initiation of Investigations
    § 165.11 Allegations by interested parties.

    (a) Filing of allegation. Any interested party, as defined in § 165.1, may file an allegation that an importer of covered merchandise has evaded AD/CVD orders. An allegation must be filed electronically through the appropriate portal on CBP's online e-Allegations system or through any other method approved or designated by CBP. Each allegation must be limited to one importer, but an interested party may file multiple allegations. An allegation must satisfy the requirements in paragraphs (b) through (d) of this section.

    (b) Contents. An allegation of evasion must include, but is not limited to, the following information:

    (1) Name of the interested party making the allegation and identification of the agent filing on its behalf, if any, and the email address for communication and service purposes;

    (2) An explanation as to how the interested party qualifies as an interested party pursuant to § 165.1;

    (3) Name and address of importer against whom the allegation is brought;

    (4) Description of the covered merchandise;

    (5) Applicable AD/CVD orders; and

    (6) Information reasonably available to the interested party to support its allegation that the importer with respect to whom the allegation is filed is engaged in evasion.

    (c) Certifications. An allegation must also be accompanied by the certifications required under § 165.5(b) and the following statement of informed consent from the person making the submission: “I certify my understanding and consent that the information provided for in § 165.11(b)(1) through (5) may be released for public consumption.”

    (d) Signature. The person signing the allegation on behalf of the interested party must include his or her name, position in the company or other affiliation, and provide contact information. Electronic submission of this information will be considered “signed” for purpose of filing the allegation.

    (e) Technical assistance and guidance—(1) Availability. CBP will provide technical assistance and guidance for the preparation of an allegation of evasion and its submission to CBP, as described in this section.

    (i) Small businesses. Small businesses are entitled to technical assistance upon request. In general, small businesses are eligible to make such requests if they have neither adequate internal resources nor financial ability to obtain qualified outside assistance in preparing and submitting for CBP's consideration allegations of evasion. Small businesses must satisfy the applicable standards set forth in 15 U.S.C. 632 and implemented in 13 CFR part 121.

    (ii) Other parties. Other parties may request technical assistance, which CBP may provide if resources are reasonably available.

    (2) Requests. Requests for technical assistance may be made at any time via the email address designated on CBP's online e-Allegations system or through any other method approved or designated by CBP.

    (3) Limitations. The act of providing technical assistance is not part of the record for the investigation, nor does it compel a decision by CBP to initiate an investigation pursuant to § 165.15.

    § 165.12 Receipt of allegations.

    (a) Date of receipt. The “date of receipt” of a properly filed allegation is the date on which CBP provides an acknowledgment of receipt of an allegation containing all the information and certifications required in § 165.11, together with a CBP-assigned control number, to the party that filed the allegation. CBP has 15 business days from the date of receipt to determine whether to initiate an investigation under the EAPA.

    (b) Withdrawal. An allegation may be withdrawn by the party that filed it if that party submits a request to withdraw the allegation to the designated email address specified by CBP.

    § 165.13 Consolidation of allegations.

    (a) In general. Multiple allegations against one or more importers may be consolidated into a single investigation at CBP's discretion. Consolidations may be made at any point prior to the issuance of a determination as to evasion with respect to a particular importer. If multiple allegations are received and consolidated prior to the initiation of an investigation, then the date of receipt of the first properly filed allegation will start the time period for the deadline to initiate the investigation described in § 165.15 with respect to that allegation.

    (b) Criteria. CBP may consolidate multiple allegations if warranted based on the consideration of certain factors. The factors that CBP may consider include, but are not limited to, whether the multiple allegations involve:

    (1) Relationships between the importers;

    (2) Similarity of covered merchandise;

    (3) Similarity of AD/CVD orders; and

    (4) Overlap in time periods for entries of covered merchandise.

    (c) Notice. Notice of consolidation will be promptly transmitted to all parties to the investigation if consolidation occurs at a point in the investigation after which they have already been notified of the ongoing investigation. Otherwise, parties will be notified no later than 95 calendar days after the date of initiation of the investigation.

    (d) Service requirements for other parties to the investigation. Upon notification of consolidation, parties to the consolidated investigation must serve via an email message or through any other method approved or designated by CBP upon the newly added parties to the investigation the public versions of any documents that were previously served upon parties to the unconsolidated investigation. Service must take place within five business days of the notice of consolidation.

    § 165.14 Other Federal agency requests for investigations.

    (a) Requests for investigations. Any other Federal agency, including the Department of Commerce or the United States International Trade Commission, may request an investigation under this part. CBP will initiate an investigation if the Federal agency has provided information that reasonably suggests that an importer has entered covered merchandise into the customs territory of the United States through evasion, unless the agency submits a request to withdraw to the designated email address specified by CBP.

    (b) Contents of requests. The following information must be included in the request for an investigation:

    (1) Name of importer against whom the allegation is brought;

    (2) Description of the covered merchandise;

    (3) Applicable AD/CVD orders;

    (4) Information that reasonably suggests that an importer has entered covered merchandise into the customs territory of the United States through evasion;

    (5) Identification of a point of contact at the agency; and

    (6) Notification of any knowledge of or reason to suspect that the covered merchandise poses any health or safety risk to U.S. consumers.

    (c) Receipt of requests. Requests for an investigation must be filed electronically via CBP's online e-Allegations system or through any other method approved or designated by CBP. The date of receipt is the date that CBP transmits notice of the assigned control number to the Federal agency that filed the request.

    (d) Notice of release of information—(1) Public information. CBP will treat the information required by paragraphs (b)(1) through (3) of this section as public information.

    (2) Business confidential treatment. CBP will create a public summary of the information required by paragraphs (b)(4) and (6) of this section.

    (e) Access to investigation. The Federal agency is not a party to the investigation. Therefore, it will neither receive official notice of developments after CBP's receipt of the request for an investigation nor will it receive service of any documents filed by interested parties. Only the parties to the investigation will be entitled to notice and service, as well as the related rights to administrative review and judicial review.

    § 165.15 Initiation of investigations.

    (a) Time for determination. CBP will make a determination as to whether to initiate an investigation on or before the 15th business day after the date on which a properly filed allegation is received under § 165.12(a) or a request for an investigation is received from a Federal agency under § 165.14.

    (b) Criteria for initiation. CBP will initiate an investigation under subpart C of this part if the following criteria are satisfied:

    (1) Nature of merchandise. The covered merchandise described in the allegation or Federal agency request for an investigation is properly within the scope of an AD/CVD order. If CBP lacks sufficient information to make such determination as to the scope of the order, then it will refer the matter to the Department of Commerce pursuant to § 165.16.

    (2) Likelihood of evasion. The information provided in the allegation or Federal agency request for an investigation reasonably suggests that the covered merchandise has been entered for consumption into the customs territory of the United States through evasion as it is defined in § 165.1.

    (c) Exceptions. Even if the criteria in paragraph (b) of this section are satisfied, CBP will not initiate an investigation under the following circumstances:

    (1) Clerical error. A clerical error, as defined in 19 U.S.C. 1517(a)(5)(B), is not evasion, although CBP will take appropriate actions to ensure that AD/CVD duties are assessed and collected.

    (2) Withdrawal. An allegation or a request for an investigation from another Federal agency may be withdrawn pursuant to the requirements of § 165.12(b) or § 165.14(a), as applicable.

    (d) Notification of the investigation. If CBP determines that it will not initiate an investigation, it will notify the interested party who filed the allegation within five business days of that determination. Otherwise, the parties to the investigation will be notified consistent with the following time limits:

    (1) In general. CBP will issue notification of its decision to initiate an investigation to all parties to the investigation no later than 95 calendar days after the decision has been made, and the actual date of initiation will be specified therein. However, notification to all parties to the investigation will occur no later than five business days after interim measures are taken pursuant to § 165.24.

    (2) Consolidated allegations. If multiple allegations are consolidated, any interested party who filed an allegation after initiation of an investigation will be notified by CBP of the date of the decision to initiate an investigation when that party receives notice of consolidation under § 165.13(c).

    (e) Record of the investigation. If an investigation is initiated pursuant to subpart B of this part, then the information considered by CBP prior to initiation will be part of the administrative record pursuant to § 165.21.

    § 165.16 Referrals to Department of Commerce.

    (a) When required. A referral is required if at any point after receipt of an allegation, CBP cannot determine whether the merchandise described in an allegation is properly within the scope of an antidumping or countervailing duty order.

    (b) Referral. The referral may contain any necessary information available to CBP regarding whether the merchandise described in an allegation is subject to the relevant AD/CVD orders.

    (c) Notice of referral. TRLED will promptly notify the parties to the investigation of the date of the referral.

    (d) Effect on investigation. The time period required for any referral and determination by the Department of Commerce will not be counted toward the deadlines for CBP to decide on whether to initiate an investigation under § 165.15 or the deadline to issue a determination as to evasion under § 165.27.

    (e) Notice of decision. CBP will place the determination by the Department of Commerce on the administrative record of CBP's proceeding and will electronically notify the parties to the investigation.

    Subpart C—Investigation Procedures
    § 165.21 Administrative record.

    (a) Administrative record. CBP will maintain a record for purposes of making a determination as to evasion under § 165.27 and conducting an administrative review under § 165.46. The administrative record will contain all of the following, if applicable, but is not limited to:

    (1) Materials obtained and considered by CBP during the course of an investigation under this part;

    (2) Factual information submitted pursuant to § 165.23;

    (3) Information obtained during and the results of any verification conducted pursuant to § 165.25;

    (4) Materials from other agencies provided to CBP pursuant to the investigation;

    (5) Written arguments submitted pursuant to § 165.26 and subpart D of this part; and

    (6) Summaries of oral discussions with interested parties relevant to the investigation pursuant to § 165.23.

    (b) Maintenance of the record. CBP will maintain the administrative record of each investigation or review conducted by CBP pursuant to this part. All information properly filed with CBP pursuant to §§ 165.4 and 165.5 will be placed on the administrative record. CBP will not consider in its determinations or include on the administrative record any information that is not properly filed with CBP.

    § 165.22 Time for investigations.

    (a) Time for determination. Unless CBP has extended the deadline in accordance with paragraph (c) of this section or due to a referral to the Department of Commerce pursuant to § 165.16, CBP will make a determination under § 165.27 not later than 300 calendar days after the date on which CBP initiates an investigation under § 165.15 with respect to whether covered merchandise was entered through evasion.

    (b) Time for determination with consolidated allegations. If CBP consolidates multiple allegations under § 165.13 into a single investigation under § 165.15, the date on which CBP receives the first of such allegations will be used for the purposes of the requirement under paragraph (a) of this section with respect to the timing of the initiation of the investigation.

    (c) Extension of time for determination. CBP may extend the time to make a determination under paragraph (a) of this section by not more than 60 calendar days if CBP determines that—

    (1) The investigation is extraordinarily complicated because of—

    (i) The number and complexity of the transactions to be investigated;

    (ii) The novelty of the issues presented; or

    (iii) The number of entities to be investigated; and

    (2) Additional time is necessary to make the determination under paragraph (a) of this section.

    (d) Notification of extension of time for determination. CBP will notify all parties to the investigation of an extension not later than 300 calendar days after the date on which CBP initiates an investigation under § 165.15.

    § 165.23 Submission of factual information.

    All submissions of factual information to CBP must comply with the requirements specified in §§ 165.4 and 165.5 and this section. The submissions will be placed on the administrative record.

    (a) Request for information by CBP. In making a determination under § 165.27, CBP may require additional information as is necessary, from, among others:

    (1) An interested party that filed an allegation under § 165.11;

    (2) An importer who allegedly engaged in evasion;

    (3) A person that is a foreign producer or exporter of covered merchandise; and/or

    (4) The government of a country from which covered merchandise may have been exported.

    (b) Voluntary submission of factual information. Any party to the investigation may submit additional information in order to support the allegation of evasion or to negate or clarify the allegation of evasion.

    (c) Time limits and service requirements—(1) Responses to CBP requests for factual information. Factual information requested by CBP pursuant to paragraph (a) of this section must be submitted to CBP within the timeframe set forth by CBP in the request. The public version must also be served via an email message or through any other method approved or designated by CBP on the parties to the investigation. If CBP places new factual information on the administrative record on or after the 200th calendar day after the initiation of the investigation (or if such information is placed on the record at CBP's request), the parties to the investigation will have ten calendar days to provide rebuttal information to the new factual information.

    (2) Voluntary submission of factual information. Factual information voluntarily submitted to CBP pursuant to paragraph (b) of this section must be submitted no later than 200 calendar days after CBP initiated the investigation under § 165.15. The public version must also be served via an email message or through any other method approved or designated by CBP on the parties to the investigation. Voluntary submissions made after the 200th calendar day after initiation of the investigation will not be considered or placed on the administrative record, except rebuttal information as permitted pursuant to the next sentence herein. Parties to the investigation will have ten calendar days from the date of service of any factual information or from the date of placement of any factual information on the record to provide rebuttal information to that factual information, if the information being rebutted was placed on the administrative record no later than 200 calendar days after CBP initiated the investigation under § 165.15.

    (d) Oral discussions. Notwithstanding the time limits in paragraph (c) of this section, CBP may request oral discussions either in-person or by teleconference. CBP will memorialize such discussions with a written summary that identifies who participated and the topic of discussion. In the event that confidential business information is included in the written summary, CBP will also place a public version on the administrative record.

    § 165.24 Interim measures.

    (a) Reasonable suspicion. No later than 90 calendar days after initiating an investigation under § 165.15, CBP will take interim measures if there is a reasonable suspicion that the importer entered covered merchandise into the customs territory of the United States through evasion.

    (b) Measures. If CBP decides that there is reasonable suspicion under paragraph (a) of this section, then:

    (1) For entries that remain unliquidated, CBP will:

    (i) Suspend the liquidation of each unliquidated entry of such covered merchandise that entered on or after the date of the initiation of the investigation under § 165.15;

    (ii) Extend the period for liquidating each unliquidated entry of such covered merchandise that entered before the date of the initiation of the investigation under § 165.15 pursuant to section 504(b), Tariff Act of 1930, as amended (19 U.S.C. 1504(b)); and

    (iii) Take such additional measures as CBP determines necessary to protect the revenue of the United States, including requiring a single transaction bond or additional security or the posting of a cash deposit with respect to such covered merchandise pursuant to section 623, Tariff Act of 1930, as amended (19 U.S.C. 1623).

    (2) For entries that are liquidated, CBP may initiate or continue any appropriate measures separate from this proceeding.

    (c) Notice. If CBP decides that there is reasonable suspicion under paragraph (a) of this section, CBP will issue notification of this decision to the parties to the investigation within five business days after taking interim measures. CBP will also provide parties to the investigation with a public version of the administrative record as of that date.

    § 165.25 Verifications of information.

    (a) Prior to making a determination under § 165.27, CBP may in its discretion verify information in the United States or foreign countries collected under § 165.23 as is necessary to make its determination.

    (b) CBP will place any relevant information on the administrative record and provide a public summary.

    § 165.26 Written arguments.

    All written arguments submitted to CBP pursuant to a proceeding under this part must comply with the requirements specified in §§ 165.4 and 165.5 and this section. The submissions will be placed on the administrative record.

    (a) Written arguments. Parties to the investigation:

    (1) May submit to CBP written arguments that contain all arguments that are relevant to the determination as to evasion and based solely upon facts already on the administrative record in that proceeding. All written arguments must be submitted to the designated email address specified by CBP or through any other method approved or designated by CBP no later than 230 calendar days after the investigation was initiated pursuant to § 165.15; and

    (2) Must serve a public version of the written arguments prepared in accordance with § 165.4 on the other parties to the investigation by an email message or through any other method approved or designated by CBP the same day it is filed with CBP.

    (b) Responses to the written arguments. Parties to the investigation:

    (1) May submit to CBP a response to a written argument filed by another party to the investigation. The response must be in writing and submitted to the designated email address specified by CBP or through any other method approved or designated by CBP no later than 15 calendar days after the written argument was filed with CBP. The response must be limited to the issues raised in the written argument; any portion of a response that is outside the scope of the issues raised in the written argument will not be considered; and

    (2) Must serve a public version of the response prepared in accordance with § 165.4 on the other parties to the investigation by an email message or through any other method approved or designated by CBP the same day it is filed with CBP.

    (c) Written arguments submitted upon request. Notwithstanding paragraphs (a) and (b) of this section, CBP may request written arguments on any issue from any party to the investigation at any time during an investigation.

    (d) Form of written argument and response to the written arguments. The written argument and response to the written argument must be double-spaced, with headings and footnotes single-spaced, margins one inch on all four sides, and font Times New Roman, 12-point font size. The written argument must be no more than 50 pages in length, including exhibits, and the response to the written argument must be no more than 50 pages in length, including exhibits, excluding any pages containing the table of contents and the table of cited authorities. Each written argument and response to the written argument must contain:

    (1) The name, address, and email address of the party and of his or her duly authorized agent or attorney at law (if represented by a duly authorized agent or attorney at law);

    (2) A summary of the argument or response to the argument, which is a concise summary;

    (3) The argument or response to the argument that clearly and accurately presents points of fact and law with applicable citations;

    (4) A table of contents and a table of cited authorities; and

    (5) A conclusion that states a proposal for CBP's determination as to evasion.

    § 165.27 Determination as to evasion.

    (a) Determination. Upon conclusion of the investigation, CBP will make a determination based on substantial evidence as to whether covered merchandise was entered into the customs territory of the United States through evasion.

    (b) Notification. No later than five business days after making a determination under paragraph (a) of this section, CBP will send via an email message or through any other method approved or designated by CBP a summary of the determination limited to publicly available information under paragraph (a) to the parties to the investigation.

    (c) Negative determination. If CBP makes a determination under paragraph (a) of this section that covered merchandise was not entered into the customs territory of the United States through evasion, then CBP will cease applying any interim measures taken under § 165.24 and liquidate the entries in the normal course.

    § 165.28 Assessments of duties owed; other actions.

    (a) Effect on liquidation. For entries of covered merchandise that are already liquidated when an affirmative determination is made as to evasion under § 165.27, CBP will initiate or continue any appropriate actions separate from this proceeding. For entries of covered merchandise that are unliquidated:

    (1) Suspension of liquidation. (i) CBP will suspend the liquidation of unliquidated entries of covered merchandise that is subject to the determination and that entered on or after the date of the initiation of the investigation under § 165.15 with respect to such covered merchandise; or

    (ii) If CBP has already suspended the liquidation of such entries pursuant to § 165.24, then CBP will continue to suspend their liquidation.

    (2) Extension of liquidation. (i) If liquidation is not suspended, then CBP will extend the period for liquidating the unliquidated entries of covered merchandise that is subject to the determination, pursuant to CBP's authority under section 504(b), Tariff Act of 1930, as amended (19 U.S.C. 1504(b)); or

    (ii) If CBP has already extended the period for liquidating such entries pursuant to § 165.24, then CBP will continue to extend the period for liquidating such entries.

    (b) Notification to the Department of Commerce. If CBP makes a determination under § 165.27 that covered merchandise was entered into the customs territory of the United States through evasion, CBP will notify the Department of Commerce of the determination and request, if necessary, that the Department of Commerce:

    (1) Identify the applicable antidumping or countervailing duty assessment rates for merchandise covered by the determination; and/or

    (2) If no assessment rate is available at the time, identify the applicable cash deposit rate to be applied, with the applicable antidumping or countervailing duty assessment rate to be provided as soon as that rate becomes available.

    (c) Cash deposits and duty assessment. CBP will require the posting of cash deposits and assess duties on entries of covered merchandise subject to its affirmative determination of evasion.

    Subpart D—Administrative Review of Determinations
    § 165.41 Filing a request for review of the initial determination.

    (a) How to file a request for administrative review. Requests for administrative review of the initial determination as to evasion pursuant to § 165.27 must be submitted electronically to Regulations and Rulings, in a manner as prescribed by CBP. Requests for review may be filed by any party to the investigation or its attorney at law, or duly authorized agent, and must comply with the requirements specified in § 165.3. Electronic signatures are acceptable.

    (b) Release of information and service. Requests for review must comply with the requirements for release of information specified in § 165.4.

    (c) Notice to parties to the investigation. Each party who files a request for review must provide the other parties to the investigation with a public version in accordance with § 165.4.

    (d) When filed. Requests for review must be filed no later than 30 business days after the issuance of the initial determination as to evasion. Untimely or incomplete requests for review will not be accepted.

    (e) True and accurate information. All requests must be accompanied by the certifications required pursuant to § 165.5. Any false statements contained in a request for review may subject the party to prosecution under 18 U.S.C. 1001 or other applicable laws.

    (f) Content. Each request for review must be based solely on the facts already upon the administrative record in the proceeding, in writing, and may not exceed 30 pages. It must be double-spaced with headings and footnotes single spaced, margins one inch on all four sides, and 12-point font Times New Roman. If it exceeds 10 pages, it must include a table of contents and a table of cited authorities. Each request for review must set forth the following:

    (1) The allegation control number assigned by CBP with respect to the investigation under consideration;

    (2) The name, address and email address of the party seeking review and the name, address and email address of his or her duly authorized agent or attorney at law (if represented by a duly authorized agent or an attorney at law);

    (3) A statement of the procedural history and facts as set forth in the administrative record and identified by specific page number or exhibit number and relied upon by the party to prove or establish whether evasion occurred or not;

    (4) A concise summary of the argument;

    (5) The argument expressing clearly and accurately the points of fact and of law presented and citing the authorities and statutes relied on; and

    (6) A conclusion specifying whether the initial determination should be affirmed or reversed.

    (7) Each party seeking business confidential treatment must comply with the requirements in § 165.4.

    (g) Assigned case number. Upon receipt of a timely request for review, the submission will be reviewed to ensure it has been properly filed. If the submission has been properly filed, a case number will be assigned for tracking purposes.

    (h) Consolidation of requests for administrative review. Multiple requests for review under the same allegation control number assigned by CBP involving the same importer and merchandise may be consolidated into a single administrative review matter.

    (i) Commencement of administrative review. The 60 business-day review period will commence on the date when CBP accepts the last properly filed request for administrative review and transmits electronically the assigned administrative review case number to all parties to the investigation. All properly filed requests for administrative review must be submitted to CBP no later than 30 business days after the issuance of the initial determination.

    § 165.42 Responses to requests for administrative review.

    Any party to the investigation, regardless of whether it submitted a request for administrative review, may submit a written response to the filed request(s) for review. Each written response may not exceed 30 pages in total (including exhibits but not table of contents or table of authorities) and must follow the requirements in § 165.41(f). The written responses to the request(s) for review must be limited to the issues raised in the request(s) for review and must be based solely on the facts already upon the administrative record in that proceeding. The responses must be filed in a manner prescribed by CBP no later than 10 business days from the commencement of the administrative review. All responses must be accompanied by the certifications provided for in § 165.5. Each party seeking business confidential treatment must comply with the requirements in § 165.4. The public version of the response(s) to the request(s) for review must be provided to the other parties to the investigation via an email message or through any other method approved or designated by CBP.

    § 165.43 Withdrawal.

    Requests for review and responses to requests for review will remain part of the administrative record and cannot be withdrawn.

    § 165.44 Additional information.

    CBP may request additional written information from the parties to the investigation at any time during the review process. The parties who provide the requested additional information must provide a public version to the other parties to the investigation via an email message or through any other method approved or designated by CBP. The submission of additional information requested by CBP must comply with requirements for release of information in § 165.4. CBP may apply an adverse inference as stated in § 165.6 if the additional information requested under this section is not provided.

    § 165.45 Standard for administrative review.

    CBP will apply a de novo standard of review and will render a determination appropriate under law according to the specific facts and circumstances on the record. For that purpose, CBP will review the entire administrative record upon which the initial determination was made, the timely and properly filed request(s) for review and responses, and any additional information that was received pursuant to § 165.44. The administrative review will be completed within 60 business days of the commencement of the review.

    § 165.46 Final administrative determination.

    (a) Finality. The final administrative determination issued by Regulations and Rulings will be in writing and will set forth the conclusion reached on the matter. The conclusion will be transmitted electronically to all parties to the investigation. The final administrative determination is subject to judicial review pursuant to section 421 of the EAPA.

    (b) Effect of the final administrative determination. If the final administrative determination affirms the initial determination as to evasion, then no further CBP action is needed. If the final administrative determination reverses the initial determination, then CBP will take appropriate actions consistent with the final administrative determination.

    § 165.47 Potential penalties and other actions.

    CBP and other government agencies reserve the right to undertake additional investigations or enforcement actions in cases covered by these provisions. Nothing within this part prevents CBP from assessing penalties of any sort related to such cases or taking action under any other relevant laws.

    R. Gil Kerlikowske, Commissioner, U.S. Customs and Border, Protection. Approved: August 17, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-20007 Filed 8-18-16; 4:15 pm] BILLING CODE 9111-14-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2015-0010: T.D. TTB-142; Ref: Notice No. 154] RIN 1513-AC19 Establishment of the Champlain Valley of New York Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Final rule; Treasury decision.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 500-square mile “Champlain Valley of New York” viticultural area in Clinton and Essex Counties, New York. The Champlain Valley of New York viticultural area is not located within any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.

    DATES:

    This final rule is effective September 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kate M. Bresnahan, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 151.

    SUPPLEMENTARY INFORMATION:

    Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

    • Evidence that the area within the proposed AVA boundary is nationally or locally known by the viticultural area name specified in the petition;

    • An explanation of the basis for defining the boundary of the proposed AVA;

    • A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

    • A detailed narrative description of the proposed AVA boundary based on USGS map markings.

    Champlain Valley of New York Petition

    TTB received a petition from Colin Read, owner of North Star Vineyard, on behalf of the Lake Champlain Grape Growers Association, proposing the establishment of the “Champlain Valley of New York” AVA in Clinton and Essex Counties, New York. The proposed Champlain Valley of New York AVA covers approximately 500 square miles and is not located within any other AVA. There are 11 commercial vineyards covering a total of approximately 15.47 acres within the proposed AVA, as well as 6 wineries.

    According to the petition, the distinguishing feature of the proposed Champlain Valley of New York AVA is its short growing season, which is conducive to growing cold-hardy North American hybrid grape varieties (such as Frontenac, La Crescent, and Marquette) but not the Vitis vinifera grapes that are grown in the surrounding areas. The petition provides information comparing the length of the growing season within the AVA to those of the surrounding areas. In South Hero, Vermont, to the east of the proposed AVA, the growing season is four weeks longer than that in the proposed AVA. In Whitehall, New York, to the south of the proposed AVA, the growing season is two weeks longer than that in the proposed AVA. The growing season in the Adirondack Mountains, to the west of the proposed AVA, is too short for commercial grape growth. The proposed AVA also has a later last-frost date and an earlier first-frost date than the areas to its east and south. TTB notes that the area directly north of the proposed AVA is in Canada and, therefore, is not eligible to be part of an AVA.

    Notice of Proposed Rulemaking and Comments Received

    TTB published Notice No. 154 in the Federal Register on July 2, 2015 (80 FR 38147), proposing to establish the Champlain Valley of New York AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. For a detailed description of such evidence, see Notice No. 154. In Notice No. 154, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period closed on August 31, 2015. TTB received no comments in response to Notice No. 154.

    TTB Determination

    After careful review of the petition, TTB finds that the evidence provided by the petitioner supports the establishment of the Champlain Valley of New York AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Champlain Valley of New York” AVA in Clinton and Essex Counties, New York, effective 30 days from the publication date of this document.

    Boundary Description

    See the narrative description of the boundary of the Champlain Valley of New York AVA in the regulatory text published at the end of this final rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

    With the establishment of this AVA, its name, “Champlain Valley of New York,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Consequently, wine bottlers using the name “Champlain Valley of New York” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin. TTB is not designating “Champlain Valley,” standing alone, as a term of viticultural significance because the term “Champlain Valley” also applies to the parts of the valley located in Vermont and Canada. The petitioner proposed the name “Champlain Valley of New York” to more accurately describe the location of the AVA. The establishment of the Champlain Valley of New York AVA will not affect any existing AVA. The establishment of the Champlain Valley of New York AVA will allow vintners to use “Champlain Valley of New York” as an appellation of origin for wines made primarily from grapes grown within the Champlain Valley of New York AVA if the wines meet the eligibility requirements for the appellation.

    Regulatory Flexibility Act

    TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Kate M. Bresnahan of the Regulations and Rulings Division drafted this final rule.

    List of Subjects in 27 CFR Part 9

    Wine.

    The Regulatory Amendment

    For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Subpart C is amended by adding § 9.258 to read as follows:
    § 9.258 Champlain Valley of New York.

    (a) Name. The name of the viticultural area described in this section is “Champlain Valley of New York”. For purposes of part 4 of this chapter, “Champlain Valley of New York” is a term of viticultural significance.

    (b) Approved maps. The two United States Geological Survey (USGS) 1:100,000 scale topographic maps used to determine the boundary of the Champlain Valley of New York viticultural area are titled:

    (1) Lake Champlain, N.Y.; VT.; N.H.; U.S.; CAN., 1962; revised (U.S. area) 1972; and

    (2) Glens Falls, N.Y.; VT.; N.H., 1956; revised 1972.

    (c) Boundary. The Champlain Valley of New York viticultural area is located in Clinton and Essex Counties, New York. The boundary of the Champlain Valley of New York viticultural area is as described below:

    (1) The beginning point is found on the Lake Champlain map at the intersection of the western shore of Lake Champlain and the U.S.-Canada border, just north of the town of Rouses Point.

    (2) From the beginning point, proceed south along the western shore of Lake Champlain approximately 109.4 miles, crossing onto the Glens Falls map, to a road marked on the map as State Route 73 (now known as State Route 74) and known locally as Fort Ti Road, at the Fort Ticonderoga-Larrabees Point Ferry landing; then

    (3) Proceed west along State Route 73 (State Route 74/Fort Ti Road) approximately 1.6 miles to State Route 22; then

    (4) Proceed north along State Route 22 approximately 21 miles, crossing onto the Lake Champlain map and passing through the town of Port Henry, to an unnamed light-duty road known locally as County Road 44 (Stevenson Road); then

    (5) Proceed north along County Road 44 (Stevenson Road) approximately 5.8 miles to a railroad track; then

    (6) Proceed northerly along the railroad track approximately 1.6 miles to State Route 9N, west of the town of Westport; then

    (7) Proceed westerly along State Route 9N approximately 4.1 miles to Interstate 87; then

    (8) Proceed north along Interstate 87 approximately 21 miles to the Ausable River, southwest of the town of Keeseville; then

    (9) Proceed west (upstream) along the Ausable River approximately 6 miles to a bridge connecting two unnamed light-duty roads known locally as Burke Road and Lower Road in the town of Clintonville, and proceed north along the bridge to Lower Road; then

    (10) Proceed west along Lower Road approximately 0.6 mile to State Route 9N; then

    (11) Proceed west along State Route 9N approximately 0.8 mile to an unnamed light-duty road known locally as County Route 39 (Clintonville Road); then

    (12) Proceed north along County Route 39 (Clintonville Road) approximately 1.5 miles to the second crossing of the Little Ausable River, west of Cook Mountain; then

    (13) Proceed northeast along the Little Ausable River approximately 3.5 miles to the confluence of the river with Furnace Brook, near the town of Harkness; then

    (14) Proceed west along Furnace Brook approximately 0.17 mile to an unnamed light-duty road known locally as County Route 40 (Calkins Road); then

    (15) Proceed north along County Route 40 (Calkins Road) approximately 5.8 miles to an unnamed light-duty road known locally as County Route 35 (Peasleeville Road), south of an unnamed creek known locally as Arnold Brook; then

    (16) Proceed west along County Route 35 (Peasleeville Road) approximately 0.1 mile to an unnamed light-duty road known locally as Connors Road; then

    (17) Proceed north along Connors Road approximately 2.1 miles, crossing the Salmon River, to an unnamed light-duty road known locally as County Route 33 (Norrisville Road); then

    (18) Proceed west along County Route 33 (Norrisville Road) approximately 1.2 miles to an unnamed light-duty road known locally as Shingle Street; then

    (19) Proceed north along Shingle Street approximately 4 miles to an unnamed light-duty road known locally as County Route 31 (Rabideau Street); then

    (20) Proceed west along County Route 31 (Rabideau Street) approximately 0.4 mile to an unnamed light-duty road known locally as Goddeau Street; then

    (21) Proceed north along Goddeau Street approximately 0.9 mile, crossing the Saranac River, to State Route 3 just east of the town of Cadyville; then

    (22) Proceed east along State Route 3 approximately 0.5 mile to an unnamed light-duty road known locally as Akey Road; then

    (23) Proceed north on Akey Road approximately 0.2 mile to State Route 374; then

    (24) Proceed east along State Route 374 approximately 3.6 miles to State Route 190, also known locally as Military Turnpike; then

    (25) Proceed northwest along State Route 190 (Military Turnpike) approximately 15.2 miles to an unnamed light-duty road just east of Park Brook known locally as County Route 12 (Alder Bend Road), northwest of Miner Lake State Park; then

    (26) Proceed north along County Route 12 (Alder Bend Road) approximately 3 miles to U.S. Highway 11; then

    (27) Proceed west along U.S. Highway 11 approximately 1.7 miles to an unnamed light-duty road known locally as County Route 10 (Cannon Corners Road); then

    (28) Proceed north along County Route 10 (Cannon Corners Road) approximately 6 miles to the U.S.-Canada border; then

    (29) Proceed east along the U.S.-Canada border approximately 19.8 miles, returning to the beginning point.

    Signed: June 27, 2016. John J. Manfreda, Administrator. Approved: August 8, 2016. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
    [FR Doc. 2016-19992 Filed 8-19-16; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2014-0007: T.D. TTB-141; Ref: Notice No. 145] RIN 1513-AC10 Expansion of the Sta. Rita Hills Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Final rule; Treasury decision.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) is expanding the approximately 33,380-acre “Sta. Rita Hills” viticultural area in Santa Barbara County, California, by approximately 2,296 acres. The established viticultural area and the expansion area are both located entirely within the larger Santa Ynez Valley viticultural area and the multicounty Central Coast viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.

    DATES:

    This final rule is effective September 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

    SUPPLEMENTARY INFORMATION:

    Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to expand an AVA must include the following:

    • Evidence that the area within the proposed expansion area boundary is nationally or locally known by the name of the established AVA;

    • An explanation of the basis for defining the boundary of the proposed expansion area;

    • A narrative description of the features of the proposed expansion area affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed expansion area similar to the established AVA and distinguish it from adjacent areas outside the established AVA boundary;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed expansion area, with the boundary of the proposed expansion area clearly drawn thereon; and

    • A detailed narrative description of the proposed expansion area boundary based on USGS map markings.

    Online Availability of Documents

    All documents and comments discussed below in this final rule, including the petition to expand the Sta. Rita Hills AVA and its supporting documents, the notice of proposed rulemaking (Notice No. 145), and the comments and attached supporting documents received in response to that notice, are available for public viewing within Docket No. TTB-2014-0007 on the “Regulations.gov” Web site at http://www.regulations.gov. A direct link to Docket No. TTB-2014-0007 is available under Notice No. 145 on the TTB Web site at https://www.ttb.gov/wine/wine-rulemaking.shtml.

    Petition To Expand the Sta. Rita Hills AVA

    TTB received a petition from Patrick L. Shabram, on behalf of John Sebastiano Vineyards and Pence Ranch Vineyards, proposing to expand the established Sta. Rita Hills AVA. The Sta. Rita Hills AVA (27 CFR 9.162) was established by T.D. ATF-454, published in the Federal Register on May 31, 2001 (66 FR 29476).1

    1 The Sta. Rita Hills AVA was originally established under the name “Santa Rita Hills.” The AVA name was later abbreviated to “Sta. Rita Hills” in order to prevent potential confusion between wines bearing the Santa Rita Hills appellation and the Santa Rita brand name used by a Chilean winery. For details, see T.D. TTB-37, published in the Federal Register on December 7, 2005 (70 FR 72710).

    The Sta. Rita Hills AVA, which covers approximately 33,380 acres, is located in Santa Barbara County, California, between the towns of Lompoc, which lies to the west, and Buellton, which lies to the east. The Sta. Rita Hills AVA and the proposed expansion area are located within the Santa Ynez Valley AVA (27 CFR 9.54), which is entirely within Santa Barbara County. The Santa Ynez Valley AVA is within the larger multicounty Central Coast AVA (27 CFR 9.75). The Sta. Rita Hills AVA and the proposed expansion area do not overlap any other established or proposed AVA.

    The proposed expansion area is located along the existing eastern boundary of the Sta. Rita Hills AVA. The proposed expansion area contains approximately 2,296 acres and three commercial vineyards, two of which are currently divided by the existing eastern boundary of the AVA. Pinot Noir and Chardonnay are among the varietals of grapes grown in the proposed expansion area. The proposed expansion would move a portion of the AVA's existing eastern boundary approximately one-half mile farther to the east. The new boundary would then be defined by a road within a north-south canyon named “Cañada de los Palos Blancos,” which is located west of the city of Buellton. According to the expansion petition, the new boundary would still be within the Santa Rita Hills because a 1906 decision card issued by the U.S. Board on Geographic Names 2 states that the hills extend as far east as the mouth of the canyon.

    2 The United States Board on Geographic Names is a Federal body created in 1890 and established in its present form by Federal law in 1947 to maintain uniform geographic name usage throughout the Federal Government. Sharing its responsibilities with the Secretary of the Interior, the Board promulgates official geographic feature names with locative attributes as well as principles, policies, and procedures governing the use of domestic names, foreign names, Antarctic names, and undersea feature names. See http://geonames.usgs.gov/ for more information.

    According to the petition, the climate, topography, soils, and native vegetation of the proposed expansion area are similar to those of the established AVA. The climate of both the proposed expansion area and established AVA is influenced by cool winds and fog that move inland from the Pacific Ocean, providing a climate that is suitable for growing cool-climate wine grapes such as Pinot Noir and Chardonnay. The proposed expansion area and the established AVA contain oak-studded rolling hills of similar elevations. Finally, both the established AVA and the proposed expansion area have soils that contain loam, sand, silt, and clay.

    Although the proposed expansion area is more similar to the established Sta. Rita Hills AVA than the surrounding regions, the petition states that the proposed expansion area still shares some of the features of the surrounding Santa Ynez Valley AVA and Central Coast AVA. For instance, the proposed expansion area has elevations and rolling hills similar to those found in portions of the larger Santa Ynez Valley AVA. However, the proposed expansion area lacks the diversity of topography found within the larger Santa Ynez Valley, such as maze-like canyons and broad alluvial plains. The proposed expansion area also shares a marine-influenced climate with the Central Coast AVA and the western portions of the Santa Ynez Valley AVA. However, the proposed expansion area receives less marine-cooled air and fog than the portions of the Central Coast AVA closer to the Pacific Ocean and more marine influence than the eastern regions of the Santa Ynez Valley AVA.

    Publication of Notice of Proposed Rulemaking (Notice No. 145)

    TTB published Notice No. 145 in the Federal Register on August 7, 2014 (79 FR 46204), proposing to expand the Sta. Rita Hills AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed expansion area. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed expansion area, and for a comparison of the distinguishing features of the proposed expansion area to the surrounding areas, see Notice No. 145.

    In Notice No. 145, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period for Notice No. 145 was originally scheduled to close on October 6, 2014. On August 18, 2014, TTB received a letter from the chairman of the Sta. Rita Hills Winegrowers Alliance (comment 20) requesting a 90-day extension of the comment period in order to allow more time for industry members to submit comments. The letter stated that local grape growers and winemakers were in the process of bottling previous vintages and preparing for harvest and thus did not have time to prepare and submit comments before the close of the comment period.

    TTB determined that good cause existed to extend the comment period. Accordingly, TTB published Notice No. 145A in the Federal Register on September 3, 2014 (79 FR 52273), which extended the comment period for an additional 60 days. TTB did not extend the comment period for the requested 90 days because the bureau believed that neither Notice No. 145 nor the petition and supporting materials were voluminous or unusually complex, and that a 60-day extension would extend the comment period well past the peak of a typical harvest period. As a result, the comment period for Notice No. 145 closed on December 5, 2014.

    Comments Received

    In response to Notice No. 145, TTB received a total of 121 comments. Of these, TTB posted 117 comments for public viewing within Regulations.gov docket number TTB-2014-0007 (see http://www.regulations.gov/). TTB did not post three anonymous comments and one duplicate comment. As noted in Notice No. 145, TTB has a policy of not accepting anonymous comments.

    Of the 117 comments TTB posted to the docket, 91 comments oppose the proposed expansion, and 19 comments support the proposed expansion. TTB also received five comments from the petitioner in defense of his analyses and credentials (comments 17, 29, 47, 102, and 113). In addition, TTB posted one comment requesting an extension of the comment period (comment 20). Finally, TTB posted one comment (comment 91) that responds to claims made in an earlier comment (comment 83), but does not specifically express support for or opposition to the proposed expansion.

    Supporting Comments Received

    TTB received 19 comments supporting the proposed expansion of the Sta. Rita Hills AVA. Most of these comments assert that the petitioner's evidence demonstrates that the proposed expansion area is similar enough to the Sta. Rita Hills AVA that it should be considered part of the established AVA. These commenters include local vineyard owners and winemakers, a food and wine writer, sommeliers, a soil and plant nutrition consultant, and wine consumers. Of the 19 supporting comments, 18 provide anecdotal evidence, and 1 offers non-anecdotal evidence in the form of a chemical analysis of grapes grown within the AVA and grapes grown on the commenter's property within the proposed expansion area.

    Opposing Comments Received

    TTB received 91 comments from 88 individual commenters who oppose the expansion of the Sta. Rita Hills AVA. The commenters include local residents, local vineyard and winery owners, food and wine writers and bloggers, vineyard managers and consultants, the president of the Lompoc Valley Chamber of Commerce and Visitors Bureau, sommeliers, and the Sta. Rita Hills Winegrowers Alliance. Three of the 88 commenters submitted 2 comments each, including the Sta. Rita Hills Winegrowers Alliance (SRHWA), which sent in a link to a video presentation as well as a large package of documents that contains statements and reports from several experts. TTB considers the package submission from the SRHWA to be a single comment, even though it contains statements and reports from multiple persons writing on behalf of the alliance.

    The two most common reasons provided for opposing the proposed expansion of the Sta. Rita Hills AVA are that the proposed expansion area is not known to be part of the area known as Santa Rita Hills and that the proposed expansion area has a different climate. Some of the opposing comments also question the accuracy of the petitioner's data collection methods and analysis.

    Discussion of Comments

    In the following sections, TTB will provide a detailed discussion of the comments received in response to Notice No. 145 and the bureau's response to the comments.

    Name Evidence Opposing Comments

    Forty-one of the opposing comments address the name evidence in the proposed expansion petition. All of these comments state that the proposed expansion area is not a part of the Santa Rita Hills and is instead on an entirely different landmass. Some of the comments describe this landmass as part of the Purisima Hills. The majority, however, state that the proposed expansion area is located within a landmass known as the “Buellton Flats,” “Buell Flats,” or “Buell Flat.” Of the opposing comments that address the name evidence included in the expansion petition, two provide non-anecdotal evidence to support their claims (comments 97 and 116).

    The SRHWA submitted comment 97, a detailed comment which addresses, among other things, the name evidence provided in the expansion petition. The comment claims although the expansion petition's name evidence is largely based on a 1906 U.S. Board on Geographic Names decision card that defined the boundaries of the Santa Rita Hills, the decision card was essentially revoked by a 1907 USGS bulletin on oil resources in Santa Barbara County. One of the two authors of the bulletin was Ralph Arnold, the paleontologist listed on the 1906 decision card as the “authority” who submitted the request to the U.S. Board on Geographic Names. The bulletin describes the Santa Rita Hills as extending as far east as “nearly to the edge of the Santa Rosa [land] grant.” The comment asserts that by this definition, the Santa Rita Hills would not extend as far east as the proposed expansion area and would, instead, end within the current boundaries of the Sta. Rita Hills AVA.

    Comment 97 also states that USGS Geographic Names Information System, which provides a link to the 1906 decision card, provides three sets of latitude and longitude coordinates relating to the Santa Rita Hills. The comment claims that when mapped, these coordinates “place the easternmost point of the Santa Rita Hills just west of Mail Road,” which is within the current AVA boundaries and approximately 2.5 miles west of the proposed expansion area. The comment asserts that this is further evidence that the proposed expansion area cannot be known as “Sta. Rita Hills” because the Santa Rita Hills do not extend into the proposed expansion area.

    Comment 97 also includes several historical newspaper articles from the Lompoc Record and asserts that these articles demonstrate that the proposed expansion area is located in a region called the “Buellton Flats” or “Buell Flat(s).” According to the comment, these two terms are used to describe all of the lands historically owned by the Buell family, including “the entire Rancho de San Carlos de Jonata, [and] the Canada [sic] de los Palos Blancos . . . .” The comment concludes that, by this description, the proposed expansion area is located in an area that was historically known as “Buell Flat” because the proposed expansion area is within the San Carlos de Jonata land grant, and the Cañada de los Palos Blancos forms the eastern edge of the proposed expansion area.

    Another comment (comment 116) also challenges the expansion petitioner's interpretation of the 1906 decision card issued by the U.S. Board on Geographic Names. Although the decision card states that the Santa Rita Hills extend to the “mouth of the Cañada de los Palos Blancos,” the commenter asserts that the term “mouth” does not refer to the mouth of the canyon, which is located just north of State Highway 246. Instead, the commenter believes that “mouth” refers to the point where the seasonal creek that runs through the canyon enters the Santa Ynez River. The creek curves to the west as it exits the canyon and joins with the river south of State Highway 246, outside both the proposed expansion area and the current AVA boundary. The commenter also states that the geological feature known as the Santa Rita Syncline “separates the Santa Rita Hills from the Purisima Hills” and follows the path of State Highway 246. The commenter states that, by his interpretation of the 1906 decision card, the Santa Rita Hills do not extend as far east as the actual canyon known as the Cañada de los Palos Blancos, which forms the eastern boundary of the proposed expansion area, nor do the hills extend north of the geological feature known as the Santa Rita Syncline.

    The commenter also concludes that, using his definition of the boundaries of the actual Santa Rita Hills, none of the three vineyards located either entirely or partially within the expansion area are planted on the geological feature known as the Santa Rita Hills. The commenter asserts that the two vineyards planted north of State Highway 246 are planted on a ridge that “buttresses the Purisima Hills,” and the third vineyard, which is located south of both State Highway 246 and the junction of the creek and the Santa Ynez River, is planted in the Santa Rosa Hills. Because none of the three vineyards within the proposed expansion area are planted on the geological feature known as the Santa Rita Hills, the commenter claims that the expansion petition does not meet the name evidence requirements to say that the proposed expansion area is known as the “Sta. Rita Hills.”

    Finally, comment 97 includes a report by an expert in land titles which examines the historical land records of a man named Charles Lewis. The report shows that in 1910, Mr. Lewis obtained a parcel of land consisting of 550.89 acres cut from the Santa Rosa land grant. The parcel includes the present-day Pence Ranch vineyard, which is located within the proposed expansion area. Mr. Lewis' ranch house still stands on the Pence Ranch property and is shown on the USGS Solvang quadrangle map and on a 1919 map (included in comment 97) just north of present-day State Highway 246. The title expert's report then references a September 1913 article from the Lompoc Record that describes Mr. Lewis travelling from “his Buell Flat ranch” to Lompoc. The report concludes that because Mr. Lewis' property included a large portion of the proposed expansion area, the term “Buell Flat” applies to the proposed expansion area.

    Supporting Comments

    One of the 19 comments submitted in support of the proposed AVA expansion addresses the question of name evidence (comment 115). The commenter states that although many of the opposing comments claim the proposed expansion area is known as either “Buell Flats” or “Buellton Flats,” the only reference to those terms of which she is aware is a reference to an area east of Buellton, several miles beyond the proposed expansion area. TTB notes that the commenter did not provide any evidence to support her claim of the location of a region known as “Buell Flats” or “Buellton Flats.”

    In response to the comments challenging the name evidence in the expansion petition, the petitioner, Patrick Shabram, submitted two additional comments (comments 102 and 113). In comment 102, Mr. Shabram addresses the claims in comment 76 that the proposed expansion area extends into an area called the “Buell Flat.” Mr. Shabram provided anecdotal evidence that the proposed expansion area is not known as “Buell Flat” in the form of a statement by the current owner of Buell Ranch, who indicated the “Buell Flat” was never considered to extend west of Buellton. Instead, the ranch owner described “Buell Flat” as being “on either side of [State Highway] 246 from Ballard Canyon to about Neilson Supply,” which is a building supply store in Solvang.

    Finally, in comment 113, Mr. Shabram provides additional evidence to demonstrate that the proposed expansion area is associated with the name “Sta. Rita Hills.” A 2013 article from the Santa Barbara Independent newspaper describes a wine tasting festival in Solvang, which included wine from Pence Ranch, one of the vineyards within the proposed expansion area. The article describes the vineyard as being located “on the eastern edge of the Sta. Rita Hills [sic].” An advertisement for the 2013 PinotFest in Pasadena features “the Best of Pinot Noir from Sta. Rita Hills” and lists Pence Ranch as one of the featured wineries. Finally, a brochure from Dragonette Cellars describing their 2011 Sta. Rita Hills-labeled Pinot Noir notes that 12 percent of the grapes used to make the wine are from Pence Ranch, and that all the grapes used in the wine were selected for their “ability to add unique but complementary characteristics to the final blend.” According to Mr. Shabram, the article and the festival advertisement both demonstrate that the Pence Ranch is currently associated with the Sta. Rita Hills AVA, even though it is not within the AVA. Furthermore, Mr. Shabram believes the brochure from Dragonette Cellars shows that the quality and characteristics of the Pinot Noir grapes grown within the proposed expansion area are similar enough to Pinot Noir grapes grown within the AVA that they may be blended with AVA-grown fruit.

    TTB Analysis

    TTB has carefully reviewed all of the comments that address the issue of name evidence. TTB has also reviewed the regulatory history of the Sta. Rita Hills AVA to ensure that its determination regarding the name evidence for the proposed expansion area is consistent with the previous rulemaking, namely T.D. ATF-454.

    TTB notes that the majority of the opposing comments solely provided anecdotal evidence to support their claims that the proposed expansion area is located in a region known as the “Buellton Flats,” “Buell Flat,” or “Buell Flats.” Although the expansion petitioner includes a statement from the current owner of Buell Ranch in the expansion petition and his two additional comments, stating that the ranch owner considers the “Buell Flat” to be located between the cities of Buellton and Solvang, this is also anecdotal evidence. Section 9.12(a)(1)(ii) of the TTB regulations (27 CFR 9.12(a)(1)(ii)) states that “anecdotal information by itself is not sufficient” to demonstrate name usage, and that evidence from sources independent of the petitioner, such as newspaper or magazine articles, books, or maps, must also be provided. Therefore, TTB cannot determine the exact location of a region historically or currently known as the “Buellton Flats,” or “Buell Flat(s),” or if the region contains the proposed expansion area, based solely on the anecdotal evidence provided by the commenters.

    With regard to the articles referencing “Buell Flat(s)” which were included in comment 97, TTB notes that the articles all date to 1920 or earlier. Section 9.12(a)(1) requires evidence to show that the name is “currently and directly” associated with the area of the AVA. Nevertheless, TTB has examined the historical articles and has determined that their descriptions of the location of “Buell Flat(s)” are too vague or broad to state conclusively that the proposed expansion area was located within the area known by that name. For these reasons, TTB has determined that the historical articles do not conclusively demonstrate that the proposed expansion area is in an area currently or historically known as “Buell Flat(s).”

    TTB has also carefully considered the land title expert's analysis of the property records of Charles Lewis, which was included in comment 97. TTB agrees with the title expert's findings that the present-day Pence Ranch was once owned by Mr. Lewis, who was referred to in the 1913 newspaper article as living on a “Buell Flat ranch.” However, the 1910 survey map included with the title expert's analysis does not include any reference to “Buell Flat” and refers to various portions of the parcel of land owned by Mr. Lewis as “Hill Land,” “Palos Blancos Flat,” and “Bottom Land.” Therefore, TTB believes that the region of the proposed expansion area has been referred to by various names over time and was not known exclusively as “Buell Flat,” even at the time the land was owned by Mr. Lewis. Finally, TTB notes that the analysis does not provide evidence that the proposed expansion area is currently known as “Buell Flat,” as required by § 9.12(a)(1) of the TTB regulations.

    TTB disagrees with the assertion in comment 97 that the 1906 U.S. Board on Geographic Names decision card was revoked the following year by the 1907 USGS bulletin. Although the 1907 bulletin does not describe the eastern edge of the Santa Rita Hills in the same manner as the 1906 decision card, the bulletin does not affect the decision card. If the description of the Santa Rita Hills in the bulletin had been intended to officially replace the description in the 1906 decision card, then the Board would have issued a second card noting the new decision. However, no such card was provided to TTB during the comment period, so TTB does not consider the 1907 bulletin to have officially revoked or amended the 1906 decision card. Because TTB finds no evidence that the decision card was officially revoked or amended, TTB considers the card's definition of the Santa Rita Hills to be current, even though the decision was made in 1906.

    TTB also disagrees with the interpretation of the three sets of coordinates attributed to the Santa Rita Hills in the USGS Geographic Names Information System (GNIS). TTB does not believe that these coordinates are intended to demarcate the edges of the Santa Rita Hills. Instead, TTB believes these coordinates are intended to help map users locate the hills on each of the three USGS quadrangle maps on which they appear. On the GNIS Web site, each of the sets of coordinates is specifically linked to one of these three USGS quadrangle maps. When plotted on its specific map, each set of coordinates corresponds to a point within the hills, usually a point roughly in the middle of the printed words “Santa Rita Hills.” TTB agrees that the easternmost set of these coordinates, which is a point on the Santa Rosa Hills quadrangle map, corresponds to a point within the current AVA boundary that is west of Drum Canyon. However, TTB does not agree that this set of coordinates is intended to show the easternmost edge of the Santa Rita Hills, because the printed words “Santa Rita Hills” clearly continue east of Drum Canyon and onto the landmass that includes both the AVA's current eastern boundary and the proposed expansion area.

    TTB also finds no conclusive evidence to support the claim in comment 116 that the “mouth” mentioned in the 1906 decision card refers to the junction of the Santa Ynez River and the intermittent creek that runs through the Cañada de los Palos Blancos. Even if TTB was to use this interpretation, a portion of the Santa Rita Hills would still be within the proposed expansion area. Under the definition of “mouth” offered in comment 116, the landmass that includes both the current eastern boundary of the Sta. Rita Hills AVA and the proposed expansion area would contain portions of two separate ranges: the portion of the landmass that is north of the Santa Rita Syncline (which follows the path of State Highway 246) would be in the Purisima Hills, and the portion south of the syncline would be in the Santa Rita Hills. TTB notes that the portion of the landmass that is south of the syncline extends into the proposed expansion area. Therefore, even if TTB were to use the definition of the “mouth” of the canyon used in comment 116, a portion of the Santa Rita Hills would still be within the proposed expansion area.

    Additionally, comment 116 places the Santa Rita Syncline within the proposed expansion area, following the path of State Highway 246. TTB notes that the Santa Rita Syncline also runs through the Sta. Rita Hills AVA and was used in the original AVA petition as evidence to support the name “Santa Rita Hills” (later “Sta. Rita Hills”). Therefore, the existence of the syncline within the proposed expansion area further supports the expansion petition's claim that the proposed expansion area is associated with the AVA name.

    TTB also disagrees with the assertion in comment 116 that all three vineyards within the proposed expansion area must be planted on the actual Santa Rita Hills in order for the proposed expansion area to qualify to use the name. Section 9.12(a)(1) of the TTB regulations only requires that the name be “currently and directly associated with an area in which viticulture exists.” TTB does not require vineyards to be planted on the geographical feature that gives its name to the region. For example, no vineyards are planted in any of the creeks and rivers that give their names to numerous AVAs. Furthermore, TTB notes that many of the vineyards already within the Sta. Rita Hills AVA are not planted on the geographical feature known as the Santa Rita Hills and are, instead, planted in the Santa Rita Valley, along the floodplains along the Santa Ynez River, or on the foothills of the Purisima and Santa Rosa Hills.

    TTB has determined that evidence provided by Mr. Shabram in comment 113 provides additional support for the claim that the proposed expansion area is known as the “Sta. Rita Hills.” TTB believes that the article from the Santa Barbara Independent that describes Pence Ranch as being located on the “edge of the Sta. Rita Hills” demonstrates that wine critics associate the vineyards and wineries within the proposed expansion area more with the Sta. Rita Hills AVA than with the larger, surrounding Santa Ynez Valley AVA. The advertisement for the Pasadena PinotFest includes Pence Ranch in its list of Sta. Rita Hills AVA wineries, even though Pence Ranch is not located within the AVA's boundaries and its wines are not labeled with the appellation. Pence Ranch's inclusion in the festival strongly suggests wine community members and consumers associate the proposed expansion area with the AVA.

    However, TTB does not believe that the brochure from Dragonette Cellars provides additional name evidence, even though grapes from Pence Ranch are specifically included in the Sta. Rita Hills-labeled wine, because TTB regulations allow up to 15 percent of the grapes from an AVA-labeled wine to come from outside the AVA. The brochure does not claim that 100 percent of the grapes in the wine are from within the Sta. Rita Hills AVA, and only 12 percent of the grapes in the wine are specifically attributed to Pence Ranch.

    Finally, TTB notes that the presence within the proposed expansion area of geographical features with names other than “Santa Rita Hills,” such as the Purisima Hills or the Buellton/Buell Flat(s), does not preclude the proposed expansion area from also being known as the “Sta. Rita Hills.” TTB notes that the Sta. Rita Hills AVA currently includes several geographical features known by other names, including the Santa Rita Valley, the Santa Ynez River, Drum Canyon, and the foothills of both the Purisima Hills and the Santa Rosa Hills.

    In conclusion, TTB has determined that the evidence included in the opposing comments does not sufficiently demonstrate that the proposed expansion area does not contain a portion of the geographical feature known as the Santa Rita Hills. Additionally, TTB has determined that the evidence included in any of the opposing comments does not conclusively show that the region of the proposed expansion area is not known at the “Sta. Rita Hills” or is currently referred to solely as the “Buellton Flats” or “Buell Flat(s).” Therefore, taking into account the name evidence described in both the original AVA petition and T.D. ATF-454, TTB concludes that the name evidence provided in the expansion petition and supplemented by the evidence provided in comment 113 is sufficient to demonstrate that the proposed expansion area is known by the name “Sta. Rita Hills.”

    Topography and Native Vegetation Opposing Comments

    TTB received 23 comments that argue that the topography of the proposed expansion area is markedly different from the established Sta. Rita Hills AVA. Several of the comments state that the current eastern boundary of the AVA was placed at the point where the hills change orientation from east-west (within the AVA) to north-south (within the proposed expansion area). For example, comment 97 includes a letter stating that the proposed expansion area was excluded from the AVA because “it deviates from the orientation of the existing AVA into the unique Santa Rita Hills and its surrounding valleys.” The letter asserts that the proposed expansion area is oriented towards the city of Buellton and is therefore “fundamentally and uniquely different” from the AVA. Other comments state that the proposed expansion area contains significant expanses of flat land that are different from the terrain within the AVA. For instance, comment 45 states that the AVA contains “tight valleys,” whereas the proposed expansion area is in the “vast open plain” beyond the eastern AVA boundary. Additionally, comment 89 claims that the proposed expansion area “is actually in the flat lands east of the Santa Rita Hills.”

    Two opposing comments include non-anecdotal evidence (comments 76 and 111) to support the claims that the topography of the proposed expansion area differs from that of the Sta. Rita Hills AVA. Comment 76 includes a link to a video created by the SRHWA that compares the topography of the Sta. Rita Hills AVA to that of the proposed expansion area and the region farther east. The video describes the AVA as a “transverse valley” marked by parallel hills that run east-west, while the region east of the AVA has hills that are aligned north-south. The video states that the current eastern boundary of the AVA follows a high ridgeline “over 1,000 feet high” that is “close to 800 feet above the Buell Flats valley floor” and marks the point where the orientation of the hills changes. The video also asserts that, “It is important to note that the watershed east of the ridgeline [outside of the Sta. Rita Hills AVA] drains into the Buell Flats.” Comment 111 includes a wide-angle aerial photograph looking west into the Sta. Rita Hills AVA. The current Sta. Rita Hills eastern boundary and a portion of the proposed expansion area are marked on the photo. The commenter asserts that one can tell from the photo that the Sta. Rita Hills AVA and the proposed expansion area are “two different landmasses, two different drainages, and exposures.”

    Three comments also oppose the proposed expansion based on the native vegetation of the proposed expansion area. Comment 103 describes the proposed expansion area as “windswept grasslands,” whereas the Sta. Rita Hills is covered with “majestic oaks.” Comment 97 and comment 111 both include copies of a report from an environmental services company. The report is described as a “peer review” of the expansion petition and focuses on the petition's description of the climate and native vegetation of the proposed expansion area. The report states that the expansion petition significantly undercounted the number of valley oaks in the region between U.S. Highway 101 and the eastern boundary of the AVA, including those valley oaks located within the proposed expansion area. The environmental services company conducted its own survey of oak trees in the eastern portion of the AVA, between Drum Canyon/Mail Road and the eastern boundary. The report claims that at three locations within in the survey area, valley oaks comprised less than one percent of the oaks present at each location. However, at the fourth location, which was “at or near the AVA's eastern boundary,” valley oaks comprised approximately 50 percent of the oaks present, suggesting “an abrupt change” at the ridgeline that forms the boundary between the AVA and the proposed expansion area “to a climate that is significantly more favorable to valley oak” than to live oak.

    Supporting Comments

    TTB received three comments in support of the proposed expansion area that specifically mentioned its topography. According to the three comments, the proposed expansion area and the AVA both contain similar topography. Comment 23 asserts that “the mesa part of the vineyard [within the proposed expansion area] is not dissimilar to other vineyards on flat ground” within the Sta. Rita Hills AVA. Comment 33 argues that the proposed expansion area is not on a separate landmass from the AVA because it is on the same hillside as the current AVA's eastern boundary. Finally, comment 109 claims that the proposed expansion area is not flat and low-lying, as many opposing comments claim, but is “of a higher elevation and with steeper slopes than much of the existing AVA terrain.”

    The expansion petitioner, Mr. Shabram, submitted three comments further describing the topography of the proposed expansion area (comments 17, 29, and 102). Comment 17, submitted in response to several opposing comments that claim the proposed expansion would extend the AVA significantly to the east and beyond the influence of the marine air, includes a map showing the location of the Sta. Rita Hills AVA and the proposed expansion area, as well as the distance to the ocean from both regions. Mr. Shabram asserts that the map shows the proposed expansion area would not extend the AVA substantially farther from the ocean. Comment 29, submitted in response to comments claiming that the proposed expansion area is flatter than the AVA, contains a map showing the slope angles of both the proposed expansion area and the AVA, which Mr. Shabram asserts are similar.

    In comment 102, Mr. Shabram responds to the video included in comment 76. Mr. Shabram first notes that although the video states that the Sta. Rita Hills AVA is a transverse valley, the satellite images in the video show that the transverse valley is not limited to the AVA but in fact extends from the Pacific Ocean through the AVA and the proposed expansion area and ends at a point “well east” of the city of Buellton. Mr. Shabram then disputes the video's claim that the AVA's eastern boundary is formed by a ridgeline with elevations over 1,000 feet. Mr. Shabram asserts that the boundary is not a true ridgeline but “the eastern edge of the Santa Rita Valley or a narrowing of the gap between the Purisma [sic] Hills and the Santa Rita/Santa Rosa Hills.” Mr. Shabram further states that the highest point along the eastern AVA boundary is an “unnamed hill of 1,063 feet upon which John Sebastiano Vineyards sit. Some of the vineyards on this hill are in the Sta. Rita Hills AVA, some are outside.” Although this hill's elevation is over 1,000 feet, Mr. Shabram observes that the highest point along State Highway 246 is only 557 feet, as shown on the USGS maps. The highway connects the AVA and the proposed expansion area and follows a natural wind gap in the mountains. Because the diurnal inversion layers in Santa Barbara County typically reach as high as 900 feet, Mr. Shabram concludes that this wind gap, which is approximately 160 feet above the valley floor adjacent to the west, is not so high as to block marine air and fog from entering the proposed expansion area. Finally, Mr. Shabram states that although the video claims that it is important that the region east of the current AVA, including the proposed expansion area, drains into the “Buell Flats,” both the AVA and the proposed expansion area are part of the larger Santa Ynez River watershed.

    TTB Analysis

    TTB has carefully reviewed all of the comments that address the issue of topography and native vegetation. TTB has also reviewed the regulatory history of the Sta. Rita Hills AVA to ensure that its determination regarding the topographical and native vegetation evidence for the proposed expansion area is consistent with the previous rulemaking.

    T.D. ATF-454 describes the topography of the AVA as “an oak studded, hill-laden maritime throat that runs east to west, a few miles east of Lompoc to a few miles west of the Buellton Flats” and is “isolated geographically” by the Santa Rosa Hills to the south and the Purisima Hills to the north. These two east-west oriented ranges “frame the interior of the Santa Rita Hills [sic] AVA.” TTB notes that the importance of the AVA's orientation was that it allows marine-influenced air to enter the AVA and moderate the climate.

    TTB has determined that the opposing comments do not provide sufficient evidence to demonstrate that the topography of the proposed expansion area is different from that of the existing Sta. Rita Hills AVA. The topographical maps provided with the expansion petition, as well as the slope angle map submitted by Mr. Shabram in comment 17, demonstrate that the proposed expansion area is a region of hillsides similar to those found in the Sta. Rita Hills AVA.

    TTB disagrees that the aerial photograph included in comment 111 shows that the terrain of the proposed expansion area is different. The AVA's current eastern boundary is marked on the photo, and State Highway 246 is visible, which makes it possible to identify the proposed expansion area. TTB notes that the hilly terrain of the proposed expansion area, located to the right of the highway in the photo, resembles the hillsides within the AVA. The flat floodplain of the Santa Ynez River, which is prominent in the foreground of the photo, is not within the proposed expansion area. Furthermore, nothing in T.D. ATF-454 excludes valleys, floodplains, or other flat lands from the AVA. In fact, TTB notes that T.D. ATF-454 states that “viticultural viability” within the AVA was determined by, among other factors, the presence of both “hillside and alluvial basin plantings.”

    With regard to the comments that claim the proposed expansion area should be excluded from the Sta. Rita Hills AVA because it is not part of the east-west maritime throat that defines the AVA, TTB believes that the proposed expansion area is part of the east-west oriented ranges described in the original petition as “framing” the AVA. The proposed expansion area sits on the eastern side of the same landmass that forms the AVA's current eastern boundary, meaning that the western slopes of this landmass are already within the AVA. TTB does not believe that any of the comments contain sufficient evidence to demonstrate that the eastern slopes of this landmass are topographically different from the western slopes, which are within the AVA.

    TTB does agree that the eastern slopes of the landmass do face away from the interior of the AVA and the Santa Rita Hills. However, TTB notes that T.D. ATF-454 does not exclude all slopes that face away from the interior of the AVA. Currently, there are slopes along the canyons and creek valleys within the AVA that face east or west and not north or south into the interior of the AVA. Therefore, TTB does not believe that slope orientation should prevent the proposed expansion area from being included in the Sta. Rita Hills AVA.

    After reviewing the video included in comment 76, TTB does not believe that the video demonstrates any significant topographical difference between the proposed expansion area and the Sta. Rita Hills AVA. TTB does agree that the topography of the vineyards near Buellton and Solvang, which are shown in the video, appears different from the AVA. However, none of these vineyards are within the proposed expansion area. TTB also notes that, while the region east of the current AVA boundary may drain away from the Santa Rita Hills, all the creeks within the AVA and the proposed expansion area eventually drain into the Santa Ynez River. Although T.D. ATF-454 mentions that the AVA has a different drainage than the Lompoc basin, to the west, there is no discussion of any differences in drainage between the AVA and the region to the east, where the proposed expansion area is located. In fact, T.D. ATF-454 states that the “Santa Rita Upland Basin,” located within the AVA, is in “hydrologic continuity” with the “Buellton Upland Basin.” TTB notes that a map included in the original Sta. Rita Hills petition as Exhibit 3 shows that the “Buellton Upland Basin” covers an area that includes both the eastern portion of the AVA and the proposed expansion area. Therefore, TTB does not consider hydrologic features to distinguish the AVA from the region to the east, including the proposed expansion area.

    With regard to the comments on the native vegetation within the proposed expansion area, TTB believes that the report from the environmental services company contained in comments 97 and 111 suggests the description of the native vegetation in the expansion petition may be inaccurate. The report asserts that valley oaks are more common within the proposed expansion area than the expansion petition claims. However, both the report and the expansion area concur that oak trees, in general, do grow in both the AVA and the proposed expansion area. TTB also notes that T.D. ATF-454 states that the AVA is “oak studded” but does not distinguish between valley oaks and coastal live oaks. Therefore, although TTB agrees that the expansion petition's estimate of the number of valley oaks versus live oaks found within the proposed expansion area may not be accurate, the presence or absence of a specific species of oak is not a distinguishing feature of the AVA. TTB has also determined that the expansion petition contains enough other evidence to demonstrate the similarity between the proposed expansion area and the AVA to allow the expansion petition's native vegetation evidence to be excluded from consideration.

    Climate Opposing Comments

    TTB received 45 comments opposing the proposed expansion based on climate. The majority of these opposing comments state that the proposed expansion area is warmer than the AVA because the ridgeline that forms the current eastern boundary of the AVA prevents most, if not all, of the cool marine air and fog from travelling farther east. For example, many of the opposing comments claim that as one travels east along State Highway 246, the temperature becomes noticeably warmer after crossing the eastern boundary of the AVA. Some of the comments claim that it is evident that the proposed expansion area has a warmer climate than the AVA because different vegetables and berries are grown in the proposed expansion area (comment 53) or because bud break and harvest occur earlier in the proposed expansion area (comments 81, 87, and 105). Another comment, comment 116 claims, “An average daily high temperature of less than 80 degrees and an abundance of sunshine is the factor that distinguishes the Sta. Rita Hills AVA from all others,” and that the proposed expansion area's daily highs are warmer than 80 degrees. Other comments question the petitioner's data collection methods, claiming that the petitioner “cherry-picked” temperature data to make it appear as though the proposed expansion area's climate is similar to the AVA (comment 44), and that the petitioner should have used an eastern comparison point closer to the proposed expansion area than Ballard Canyon (comments 86 and 97).

    Three of these opposing comments provide non-anecdotal evidence (comments 76, 97, and 111). For example, the video in comment 76 includes footage of fog covering the AVA, while the vineyards in the proposed expansion area are fog-free. The video states that the absence of fog over the proposed expansion area demonstrates that the ridgeline forming the AVA's eastern boundary prevents marine-influenced fog and air from moving farther east. Comment 97 also refers to this video as evidence that marine air does not enter the proposed expansion area.

    Additionally, comment 97 asserts that the climate data in the expansion petition “cannot be considered adequate or credible evidence to establish that the original petitioners were incorrect or incomplete in their analysis of the distinctive climate of the AVA . . . .” The comment asserts that it is inappropriate for the expansion petition to use a weather station in the Ballard Canyon AVA to demonstrate that the proposed expansion area's climate is more similar to the Sta. Rita Hills AVA than the region east of the proposed expansion area because Ballard Canyon is “over 6 miles away and separated by a mountain range . . . .” Furthermore, the comment asserts that the expansion petition should not have used comparison data from a region that is already within an established AVA because, “[w]hen TTB established the Ballard Canyon AVA, the agency recognized the area as viticultural [sic] distinct from the surrounding areas. The petitioners have simply stated the obvious truth of what TTB determined-the areas outside Ballard Canyon AVA are not like Ballard Canyon AVA.”

    Comment 97 also states that the Web site from Pence Ranch, which is a vineyard within the proposed expansion area, provides additional evidence that the climate of the proposed expansion area is different from that of the Sta. Rita Hills AVA. The Pence Ranch Web site notes that the vineyard is contemplating, in the words of the commenter, “graft[ing] an acre of Pinot Noir vines to Gamay (not one of the Burgundian varietals that the AVA is known to grow so successfully) . . . .” The Web site also includes a photo showing a neighboring vineyard within the AVA “nestled in fog,” while the Pence Ranch vineyard is sunny. The letter suggests that the absence of fog in the photo of the Pence Ranch vineyard along with the vineyard owner's plans to graft Pinot Noir vines onto a varietal not currently grown in the Sta. Rita Hills AVA demonstrate that the proposed expansion area has a different climate.

    Comment 97 also includes a report from Dr. Deborah Elliott-Fisk, Professor Emeritus of Geography, Ecology, and Wildlife, Fish and Conservation Biology at the University of California, Davis. In her report, Dr. Fisk critiques the climate data provided in the expansion petition. Dr. Fisk commissioned Mark Battany, the University of California Cooperative Extension Viticulture Farm Advisor for Santa Barbara and San Luis Obispo counties, to provide an analysis of data from weather stations placed in vineyards throughout Santa Barbara County. These weather stations include stations that Dr. Fisk asserts correspond to stations used in the expansion petition, as well as several stations she describes as being “just outside” of the Sta. Rita Hills AVA. Dr. Fisk states that Mr. Battany's climate analysis used two different methods to calculate growing degree days (GDDs), and the results were converted into isotherm maps that show the climate patterns in the county. According to Dr. Fisk, the results of the analysis demonstrate that the proposed expansion area is consistently warmer than the AVA, and the isotherm maps show that the transition to warmer temperatures occurs at the current eastern boundary of the AVA. Dr. Fisk also claims that when comparing Mr. Battany's GDD data to the GDD data in the expansion petition, “none of the numbers match . . . .” As a result, Dr. Fisk concludes that the climate data in the expansion petition is inaccurate and that the petitioner's data collection methods and analysis methods were faulty.

    Finally, comment 97 and comment 111 both also include the same report from the environmental services company that was previously discussed in the “Topography and Native Vegetation” section of this document. The report critiques a map included in the expansion petition that illustrates the flow of wind through the AVA and into the proposed expansion area. The report asserts that the map provides an inaccurate description of the wind patterns, and that the winds move at different speeds as they are constricted at the bend in the Santa Ynez River near the current eastern boundary. The report states that “given the lack of empirical evidence, these conclusions [should] be considered as an untested hypothesis.” The report also critiques the climate data provided in the expansion petition, claiming that the data is insufficient because it was collected for too short of a time period. Furthermore, the report asserts that the expansion petition did not provide any information as to the model of the weather stations used to gather the data, how they were calibrated, or where they were placed with respect to “slope, aspect, orientation, land-cover, vegetation, and nearby structures.”

    The environmental services company's report provides its own wind and temperature models to support the assertion that the proposed expansion area has a different climate than the AVA. The report's wind models were derived from a “48-hour hindcast of a sea breeze circulation over Santa Barbara County on July 4th, 2009, using the Weather Research Forecasting Model (WRF) from the National Center for Atmospheric Research.” The temperature models show day and night cloud cover and land surface temperatures for the period between April and October from 2003 to 2013. The report states that these models demonstrate that the wind patterns shown on the map in the expansion petition are inaccurate, and that the “region of the proposed AVA expansion . . . is several degrees warmer, on average,” than the Sta. Rita Hills AVA.

    Supporting Comments

    Eleven comments supporting the proposed expansion specifically mention climate. These comments all essentially state that the proposed expansion area's climate is similar to that of the Sta. Rita Hills AVA, with cooling marine breezes and fog. Two of these comments also claim that bud break and harvest within the proposed expansion area occur at approximately the same time as in the AVA (comments 23 and 110). TTB notes that none of these supporting comments provide non-anecdotal evidence to support their claims.

    In response to comments questioning the climate data in the expansion petition, Mr. Shabram submitted two comments (comments 102 and 113). In comment 102, Mr. Shabram responds to the video included in comment 76. First, Mr. Shabram states that, contrary to the claim made in the video, marine air flows inland much farther than the current eastern boundary of the Sta. Rita Hills AVA and extends at least to the Ballard Canyon AVA. Mr. Shabram states that the ridgeline that forms the current eastern boundary of the AVA is not too high to prevent the marine air and fog from entering, particularly since the rise along State Highway 246 has an elevation of 557 feet, which is only approximately 160 feet above the floor of the adjacent valley within the AVA. Mr. Shabram also states that the narrowing of the mountains at the point of this rise actually increases the speed of the wind into the proposed expansion area, instead of slowing or stopping it. Finally, Mr. Shabram states that the footage showing fog over the AVA but not over the proposed expansion area is inconclusive, as the video provides no information about the time of day when the footage was shot, and one “momentary shot is by no means telling of an entire growing season.” Furthermore, Mr. Shabram speculates that the fog shown in the video is not marine fog but radiation fog, which is the result of cool air draining into the Santa Ynez River valley.

    In comment 113, Mr. Shabram responds to critiques of the climate data he provided in the expansion petition. Mr. Shabram again asserts that the current eastern boundary of the AVA does not block marine air from travelling farther east but instead acts as a funnel to increase the speed of marine breezes, propelling them into the proposed expansion area. As evidence, Mr. Shabram provides wind speed data from Pence Ranch vineyards, within the proposed expansion area, and compares the data to wind speed data collected in the city of Lompoc, which is approximately two miles west of the Sta. Rita Hills AVA and receives unobstructed winds from the Pacific Ocean. The data shows that the maximum wind speeds in the proposed expansion area are significantly higher than those in Lompoc, even though the proposed expansion area is farther from the ocean and on the eastern side of the ridgeline. As additional evidence that fog can enter the proposed expansion area, Mr. Shabram included a link to a recent video of workers harvesting grapes at Pence Ranch, which shows fog shrouding the vineyard.

    Mr. Shabram then addresses the report from Dr. Fisk in comment 97 by providing more information on the models of weather stations he used to collect his climate data, along with photographs of the stations. He states that he used the Ballard Canyon AVA as a comparison point because he was unable to find a weather station closer to the proposed expansion area that had complete data sets. Mr. Shabram notes that while several of the stations used in Dr. Fisk's report are near the stations used in the expansion petition, only one of the weather stations is actually the same station used in the expansion petition: Station 26, located in the southeastern corner of the AVA, is the same station referred to as Station E in the expansion petition. None of the stations used in Dr. Fisk's report are located within the proposed expansion area. Mr. Shabram also states that the weather stations that Dr. Fisk described as being “just outside” the Sta. Rita Hills AVA are in fact several miles away, with the closest (Station 23) located along U.S. Highway 101 in Buellton and the next closest station appearing to be within the Ballard Canyon AVA.

    Finally, Mr. Shabram clarified the method he used to calculate GDDs, which is different from the two methods used in Dr. Fisk's report. One of the methods in the report used an average of only the daily maximum and daily minimum temperatures, while the second method used a daily average temperature that was calculated using temperatures gathered every 15 minutes. Both of these methods set the minimum for the temperatures used to calculate the daily average at zero, and the temperatures were measured in degrees Celsius. By contrast, Mr. Shabram's GDD calculation method used the average of the daily maximum high and daily minimum low temperatures measured in degrees Fahrenheit. Furthermore, if the daily minimum low temperature was below 50 degrees Fahrenheit, the minimum temperature needed for grapevine growth and fruit development, Mr. Shabram's method substituted 50 degrees for the minimum temperature. Mr. Shabram states that the differences in the methods used to calculate GDDs would naturally cause differences in the results, and both of the methods used in Dr. Fisk's report would always produce smaller GDD totals than Mr. Shabram's method. Furthermore, using degrees Celsius would also naturally result in smaller GDD totals than using degrees Fahrenheit, regardless of the GDD calculation method used.

    TTB Analysis

    TTB has carefully reviewed all of the comments that address the issue of climate. TTB has also reviewed the regulatory history of the Sta. Rita Hills AVA to ensure that its determination regarding the climatic evidence for the proposed expansion area is consistent with the previous rulemaking.

    TTB notes that T.D. ATF-454 describes the climate of the AVA as being moderated by cooling breezes and fog from the Pacific Ocean. T.D. ATF-454 also states that the Sta. Rita Hills AVA is cooler than the region “east of Highway 101” and is cool enough to grow cool-climate grapes, specifically Pinot Noir and Chardonnay, which are not typically grown farther east. The original Sta. Rita Hills AVA petition included climate data from Lompoc, adjacent to the western boundary of the AVA, and Lake Cachuma, approximately 17 miles east of the eastern boundary of the AVA, but provided no climate data from within the AVA or the region that is now the proposed expansion area.

    TTB has determined that the opposing comments do not provide sufficient evidence to demonstrate that the climate of the proposed expansion area is different from that of the existing Sta. Rita Hills AVA, as defined in T.D. ATF-454. Although many of the opposing comments state that the proposed expansion area is warmer, receives less fog, and has an earlier harvest date than the Sta. Rita Hills AVA, the majority of these comments provide only anecdotal evidence. Therefore, TTB is unable to determine the accuracy of these statements.

    Finally, with regard to the comments stating that different vegetable and berry crops are grown in the proposed expansion area, TTB notes that AVAs are established based on factors that affect viticulture. Different crops have different growing requirements and may be more susceptible to slight variations in growing conditions than wine grapes. Therefore, TTB does not consider the presence or absence of crops other than wine grapes to be a relevant feature of the Sta. Rita Hills AVA.

    With regard to the video submitted in comment 76, TTB has also determined that the video does not provide sufficient evidence to contradict the climate evidence provided in the expansion petition. The footage of sunny conditions in the proposed expansion area while fog covers a neighboring vineyard within the AVA captures only one moment of one day and does not conclusively demonstrate that fog never reaches the expansion area. TTB notes that both the photograph of fog in the Pence Ranch that was included in the expansion petition and the video of fog submitted by Mr. Shabram in comment 113 show that fog can reach the proposed expansion area at some point during the growing season. TTB notes that the presence of marine fog is a distinguishing feature of the Sta. Rita Hills AVA, but T.D. ATF-454 does not set a minimum number of days when fog must be present or a certain time of day by which fog must be present. Therefore, TTB believes that the evidence provided in the expansion petition is sufficient to demonstrate that fog occurs within the proposed expansion area.

    TTB also does not believe that comment 97 contains sufficient evidence to demonstrate that the petitioner's methods were seriously flawed. The TTB regulations in § 9.12 do not prohibit use of comparison data from within an established AVA. The Ballard Canyon AVA is east of both the proposed expansion area and the Sta. Rita Hills AVA and, therefore, may be used to distinguish the proposed expansion area from the region to the east. TTB also notes that the Ballard Canyon AVA station is closer to both the Sta. Rita Hills AVA and the proposed expansion area than the station at Lake Cachuma, which was used as a comparison station in T.D. ATF-454. When the Sta. Rita Hills AVA was originally proposed, TTB did not receive any negative public comments regarding the use of the Lake Cachuma weather station, which is significantly east of the proposed AVA. Therefore, TTB believes that the expansion petition's use of temperature data from a station in the Ballard Canyon AVA is appropriate.

    Additionally, TTB does not believe that the plan by the owner of the Pence Ranch to graft Pinot Noir vines to Gamay vines, as described in comment 97, is sufficient to demonstrate that the proposed expansion area has a different climate from the Sta. Rita Hills AVA. T.D. ATF-454 states that the Sta. Rita Hills AVA boundaries were drawn, in part, to include areas cool enough to grow Pinot Noir and Chardonnay, but TTB regulations do not require that only certain varietals of grapes can be planted or used for grafting within a given AVA. Furthermore, TTB notes that all three vineyards located either entirely or partially within the proposed expansion area do currently grow both Pinot Noir and Chardonnay. Therefore, TTB does not believe that the Pence Ranch owner's decision to experiment with additional grape varietals or grafting techniques on one acre of his property is evidence that the proposed expansion area's climate is different from that of the Sta. Rita Hills AVA.

    TTB has also carefully reviewed the report from Dr. Fisk included in comment 97 and has determined that the temperature analysis Dr. Fisk commissioned from Mr. Battany does not conclusively demonstrate that the temperature of the proposed expansion area is warmer than that of the AVA. TTB does agree that the data indicates that the southeastern corner of the AVA is not always warmer than the rest of the AVA, as the expansion petition suggests. The data from 2008 and 2011 shows that, for those two years, the southeastern portion of the AVA was actually cooler than the northeastern portion, when the “daily maximum-minimum” method of GDD calculation was used. However, given that the report used different weather stations and different GGD calculation methods from the expansion petition, TTB cannot say that the report's findings from these two years conclusively negate any or all of the temperature data in the expansion petition.

    TTB also notes that Mr. Battany clearly states in his analysis that his isotherm maps “are intended to be aids for the viewer to observe broad regional trends,” and that they “should not be used for assigning values to non-measured locations . . . .” TTB notes that the proposed expansion area is not identified on the isotherm maps, nor was a weather station from within the proposed expansion area used to develop the maps. However, based on the satellite photo included in the report to show the locations of his weather stations, TTB estimates that the proposed expansion area is almost due north of Station 26 and slightly east of Station 17, which places both stations within the current boundaries of the Sta. Rita Hills AVA. Based on this estimation, TTB believes that the isotherm maps show the proposed expansion area to be in the same isotherm as either Station 17 or Station 26 in some years, and to be in the same isotherm as both stations in other years. Station 23, in Buellton, is the closest station to the proposed expansion area and is consistently in a warmer isotherm than both the proposed expansion area and the AVA. Therefore, TTB does not believe that the isotherm maps conclusively demonstrate that the temperature of the proposed expansion area is either greater than the range of temperatures found in the AVA or is more similar to the temperatures of the region east of the AVA.

    Furthermore, TTB notes that although T.D. ATF-454 states that a cool climate conducive for growing Pinot Noir and Chardonnay grapes is a distinguishing feature of the AVA, it does not set a maximum or minimum GDD total or a specific range of temperatures as a distinguishing feature of the AVA. T.D. ATF-454 describes climate data from Lompoc and Lake Cachuma and essentially states that the AVA is warmer than Lompoc and cooler than Lake Cachuma. The isotherm maps in comment 97 consistently show that the warmest station is Station 25, which is near Lake Cachuma. None of the isotherm maps show Station 25 in an isotherm that extends west of Buellton, which means that the proposed expansion area is always cooler than the station closest to the comparison location used in T.D. ATF-454. Therefore, TTB believes the isotherm maps do not provide sufficient evidence to show that the proposed expansion area does not meet the temperature parameters for the Sta. Rita Hills AVA as set forth in T.D. ATF-454.

    TTB has also determined that the differences in Mr. Battany's and Mr. Shabram's GDD totals can be explained by their use of different GDD calculation methods and different scales for measuring temperature. When comparing the 2008-2011 GDD totals for the only station used by both Mr. Shabram and Mr. Battany (Station 26/Station E), TTB does agree with the statement in comment 97 that the totals appear vastly different at first glance. For instance, Mr. Battany reports a GDD total of 1,694 for Station 26/Station E for 2008, using the “daily maximum-minimum” calculation method, while Mr. Shabram reports a GDD total of 3,363 using a similar but slightly different calculation method. However, when one converts Mr. Battany's GDD total for Station 26/Station E from degrees Celsius to degrees Fahrenheit by multiplying by 1.8, the GDD total becomes 3,049.2, which is much closer to Mr. Shabram's total.3 TTB believes that the remaining difference of 314 GDDs may be explained by the fact that Mr. Shabram's calculation method does not allow for daily minimum temperatures below 50 degrees, which naturally results in higher totals than either of Mr. Battany's calculation methods, which use any minimum temperature above 0. Therefore, TTB does not agree with Dr. Fisk's assertion that Mr. Battany's GDD totals prove that the temperature data included in the expansion petition is inaccurate and that Mr. Shabram's methods were faulty.

    3 Celsius-to-Fahrenheit conversion method from the National Weather Service's Climate Prediction Center Web page (http://www.cpc.noaa.gov/products/wesley/cfsr/GDD.html).

    TTB notes that wind speed was not mentioned in T.D. ATF-454 and is not considered to be a distinguishing feature of the Sta. Rita Hills AVA. Nevertheless, TTB reviewed the report from the environmental services company that was included in comments 97 and 111. With regard to the report's critique of the wind map provided in the expansion petition, TTB notes that the intent of the map was to show the direction of airflow through the Sta. Rita Hills AVA and the paths the marine air takes to enter the proposed expansion area. The map was not intended to show how strongly the wind moves through the AVA or the force with which it exits the AVA and enters the proposed expansion area. TTB notes that the scale of the wind maps created by the environmental services company and included in the report is small and difficult to read, and that the AVA and proposed expansion area are only vaguely marked. However, TTB notes that the maps do appear to show that air is able to enter the proposed expansion area from the west, which is not contrary to what the expansion petition claims.

    TTB believes that the temperature maps compiled by the environmental services company are also of too small a scale to read easily. The AVA and proposed expansion area are vaguely marked on these maps, as well. Therefore, TTB cannot agree with the environmental services company's claim that their temperature maps show that the proposed expansion area is “several degrees warmer, on average,” than the Sta. Rita Hills AVA.

    With regard to the report's critique of the temperature collection methods used in the expansion petition, TTB first notes that § 9.12 does not set forth a minimum number of years that climate data must be collected. Section 9.12(a) only requires that a petition include “sufficient information, data, and evidence such that no independent verification or research is required by TTB.” However, petitioners are encouraged to submit data from as long a period as possible in order to provide the most complete picture of a region's climate. TTB notes that the expansion petition originally included only 2 years' worth of temperature data from within the proposed expansion area. Later, Mr. Shabram provided a third year of data, which came from a different weather station within the proposed expansion area because the original weather station was no longer in service. TTB was satisfied that the new station was in close enough proximity to the location of the original station and allowed the data to be used in the petition.

    TTB also notes that § 9.12 does not require petitioners to provide detailed information on the model of the weather stations they used, how the stations were calibrated, or where the stations were placed with respect to “slope, aspect, orientation, land-cover, vegetation, and nearby structures.” TTB believes it is sufficient for a petitioner to provide the years during which the weather data was collected and the general locations of the stations. The expansion petition states the length of time data was collected at each station and provides a general description of where the station was placed (i.e., inside the AVA, inside the proposed expansion area, within the Ballard Canyon AVA), as well as a map showing the location of each weather station. Furthermore, the expansion petition includes the latitude and longitude of each weather station, although TTB does not require such detailed information. Finally, in response to comments questioning his data collection methods, Mr. Shabram submitted comment 113 to provide more detailed information on the weather station models he used, as well as photographs of the several of the stations, neither of which was required by TTB. Therefore, TTB believes the expansion petitioner has provided more information on the weather stations used in the expansion petition than TTB regulations require.

    In summary, TTB has determined that the expansion petition provides sufficient evidence to demonstrate that the climate of the proposed expansion area meets the climate parameters for the Sta. Rita Hills AVA as set forth in T.D. ATF-454: temperatures that are moderated by marine air and fog, are cool enough for growing cool-climate grape varietals (specifically, Pinot Noir and Chardonnay), and are warmer than temperatures in Lompoc and cooler than temperatures in the eastern portion of the Santa Ynez Valley AVA (specifically, the region near Lake Cachuma). TTB has also determined that none of the opposing comments provide sufficient evidence to show conclusively that the climate of the proposed expansion area does not meet these parameters. Finally, TTB believes that the petitioner has provided a sufficient explanation of the methods he used to collect and analyze the climate data for the proposed expansion area, and that TTB is able to determine that his methods are sound.

    Comments Regarding Issues Outside the Scope of Part 9

    Numerous comments include various reasons for opposition to the proposed expansion of the Sta. Rita Hills AVA that do not relate to the regulatory criteria set forth in § 9.12 for AVA petitions. The points made by these comments include the following:

    1. Grapes and wines from the proposed expansion area have different characteristics/flavors from grapes and wines from the Sta. Rita Hills AVA. Many comments state that consumers have come to expect a certain taste or style from wines of the Sta. Rita Hills AVA. These comments assert that the grapes and wines from the proposed expansion area taste so different that consumers will be confused if the grapes and wines are marketed as coming from the Sta. Rita Hills AVA.

    TTB notes that the purpose of AVAs is to allow vintners to describe more accurately the origin of their wines to consumers and to help consumers identify wines they may purchase. The establishment of an AVA is neither an approval nor an endorsement by TTB of the wine or grapes produced in that area, including a determination of wine or grape taste or quality. Therefore, discussions of wine and grape taste and quality are not relevant in determining whether or not to expand the Sta. Rita Hills AVA.

    2. Approval of the proposed expansion will tarnish the reputation of the Sta. Rita Hills AVA. Numerous commenters claim that including the proposed expansion area in the Sta. Rita Hills AVA will cause the AVA to lose its defining characteristics. Some commenters state that expanding the AVA will cause it to lose its “purity and distinctiveness” (comment 27), and the expansion would negate the “countless hours and resources [spent] educating and indoctrinating millions of consumers about the AVA” (comment 45). Other commenters assert that the petitioners' motives for proposing the expansion are purely financial and have nothing to do with maintaining or enhancing the character of the AVA.

    TTB's regulations in part 9 set forth the requirements for petitions proposing the establishment or modification of an AVA. TTB has determined that the expansion petition meets the requirements of part 9 and demonstrates that the proposed expansion area is within the parameters of the distinguishing features set forth in T.D. ATF-454. Therefore, TTB does not believe that expanding the Sta. Rita Hills AVA to include the proposed expansion area would be arbitrary or contrary to either the TTB regulations as set forth in part 9 or the parameters for the Sta. Rita Hills AVA as set forth in T.D. ATF-454.

    TTB also notes that vineyard owners and vintners within an AVA will frequently form an association dedicated to promoting grapes and wines of the AVA and the business interests of its members. Therefore, the hope of financial benefits is likely not an uncommon motive for petitioning to establish or expand an AVA. However, any benefit derived from the use of an AVA name is the result of a proprietor's efforts and consumer acceptance of wines from that area, and hypothetical financial gains or losses that may result from the establishment or expansion of an AVA are not considered by TTB in determining the merits of a petition.

    3. Expansion of the Sta. Rita Hills AVA will lead to further expansions of the Sta. Rita Hills AVA as well as other AVAs.

    Several comments argue that approving the proposed expansion will lead to more petitions to expand the Sta. Rita Hills AVA and/or other established AVAs. The comments generally state that approving the proposed expansion will set a precedent for expansion that will make it more difficult for TTB to reject future expansions to the Sta. Rita Hills AVA because the integrity of the original boundaries will have been impacted. As a result, the comments predict that TTB will see a large increase expansion petitions submittals, many of which will lack merit.

    The modification of AVA boundaries is specifically allowed under § 9.12 of the TTB regulations, which also sets forth the requirements for such petitions. The merits of expansion petitions are evaluated based on these requirements, as well as on the regulatory history of the AVA, meaning that the expansion petitions must provide adequate name evidence and demonstrate that the proposed expansion area has the same distinguishing features as described in the Treasury Decision that established the AVA. TTB's decision regarding whether to approve a proposed expansion is not based on the potential for further expansion or other modification of the boundaries of the affected AVA or any other established AVA, nor would TTB's decision affect the likelihood of the approval of any such proposals in the future.

    TTB Determination

    After careful review of the petition and the comments received in response to Notice No. 145, TTB finds that the evidence provided by the petitioner supports the expansion of the Sta. Rita Hills AVA, based on the requirements of § 9.12 and the distinguishing features of the Sta. Rita Hills AVA as defined in T.D. ATF-454. TTB has also determined that the comments received in response to Notice No. 145 did not provide sufficient evidence to refute the evidence provided in the expansion petition. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB expands the Sta. Rita Hills AVA in Santa Barbara County, California, by approximately 2,296 acres, effective 30 days from the publication date of this document.

    Boundary Description

    See the narrative description of the boundary of the expanded Sta. Rita Hills AVA in the regulatory text published at the end of this final rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

    Bottlers currently using “Central Coast,” “Santa Ynez Valley,” or “Sta. Rita Hills” as an appellation of origin or in a brand name for wines made from grapes grown within the Central Coast, Santa Ynez Valley, or Sta. Rita Hills AVAs will not be affected by the expansion of the Sta. Rita Hills AVA. The expansion of the Sta. Rita Hills AVA will allow vintners to use “Sta. Rita Hills,” “Santa Ynez Valley,” and “Central Coast” as appellations of origin for wines made primarily from grapes grown within the expansion area if the wines meet the eligibility requirements for the appellation.

    Regulatory Flexibility Act

    TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.

    List of Subjects in 27 CFR Part 9

    Wine.

    The Regulatory Amendment

    For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Section 9.162 is amended by adding paragraph (b)(6), revising paragraphs (c)(3) through (6), redesignating paragraphs (c)(7) through (19) as paragraphs (c)(8) through (20), and adding a new paragraph (c)(7).

    The additions and revisions read as follows:

    § 9.162 Sta. Rita Hills.

    (b) * * *

    (6) “Zaca Creek, Calif.,” edition of 1959.

    (c) * * *

    (3) Proceed west-northwest in a straight line 0.5 mile to the intersection of Santa Rosa Road and an unnamed, unimproved road that runs just north of a marked gaging station.

    (4) Proceed west along the unnamed, unimproved road approximately 0.4 mile to a “T” intersection with an unnamed, unimproved road and the 320-foot elevation contour, Santa Rosa Land Grant, T. 6N, R. 32W.

    (5) Proceed northwest along the 320-foot elevation contour, crossing onto the Santa Rosa Hills, Calif., Quadrangle U.S.G.S. map, then continue northwest, north, and northeast along the meandering 320-foot elevation contour for approximately 1.2 miles, crossing onto the Solvang, Calif., Quadrangle U.S.G.S. map, and continue east then north along the 320-foot elevation contour approximately 0.5 miles, crossing onto the Zaca Creek, Calif., Quadrangle U.S.G.S. map, to the intersection of the 320-foot elevation contour with an unnamed, unimproved north-south road that follows the length of the Cañada de los Palos Blancos, San Carlos de Jonata Land Grant, T. 6N, R. 32W.

    (6) Proceed north-northwest along the unnamed, unimproved road 1.2 miles, crossing onto the Los Alamos, Calif., Quadrangle U.S.G.S. map, and continue along the road 1.3 miles to the marked 635-foot elevation point at the intersection of the road and a 4-wheel drive trail, San Carlos de Jonata Land Grant, T. 7N, R. 32W.

    (7) Proceed northwest in a straight line approximately 1.3 miles to an unnamed hilltop, elevation 1443 feet. Section 20, T. 7N, R. 32W.

    Signed: July 27, 2016. John J. Manfreda, Administrator. Approved: August 3, 2016. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
    [FR Doc. 2016-19998 Filed 8-19-16; 8:45 am] BILLING CODE 4310-31-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0774] Drawbridge Operation Regulation; Victoria Barge Canal, Bloomington, TX AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Victoria Barge Canal Railroad Bridge across Victoria Barge Canal, mile 29.4, at Bloomington, Victoria County, Texas. The deviation is necessary to conduct maintenance on the bridge. This deviation allows the bridge to remain temporarily closed-to-navigation for 12 hours.

    DATES:

    This deviation is effective from 8 a.m. to 8 p.m. on September 1, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0774] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Donna Gagliano, Bridge Administration Branch, Coast Guard; telephone 504-671-2128, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Victoria County Navigation District/Port of Victoria in conjunction with the Union Pacific Railroad (UPRR), requested a temporary deviation from the operating schedule of the Victoria Barge Canal Railroad Lift Bridge across Victoria Barge Canal, mile 29.4, at Bloomington, Victoria County, Texas. This deviation was requested to allow the bridge owner to replace old wire cables utilized in the raising and lowering of the bridge deck. This bridge is governed by 33 CFR 117.991.

    This deviation allows the vertical lift bridge to remain closed-to-navigation from 8 a.m. to 8 p.m. on Thursday, September 1, 2016. The bridge has a vertical clearance of 22 feet above high water in the closed-to-navigation position and 50 feet above high water in the open-to-navigation position. Navigation on the waterway consists of commercial traffic,-which is primarily vessels and tows providing services to the Port of Victoria.

    For the duration of the replacement of cables, vessels will not be allowed to pass through the bridge. Vessels traffic coordination will be scheduled to avoid unnecessary delays. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

    The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    David M. Frank, Bridge Administrator, Eighth Coast Guard District.
    [FR Doc. 2016-19933 Filed 8-19-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0802] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to accommodate vehicular traffic attending football games at Husky Stadium at the University of Washington, Seattle, WA. This deviation allows the bridge to remain in the closed-to-navigation position two and a half hours before and two and a half hours after each game. The game times for three of the seven games scheduled for Husky Stadium have not yet been determined due to NCAA television scheduling.

    DATES:

    This deviation is effective from 8:30 a.m. on September 3, 2016 to 11 p.m. on November 19, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0802] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Washington State Department of Transportation, on behalf of the University of Washington Police Department, has requested that the Montlake Bridge bascule span remain in the closed-to-navigation position, and need not open to vessel traffic to facilitate timely movement of pre-game and post game football traffic at Husky Stadium at the University of Washington, Seattle, WA. The Montlake Bridge crosses the Lake Washington Ship Canal at mile 5.2; and while in the closed-to-navigation position provides 30 feet of vertical clearance throughout the navigation channel and 46 feet of vertical clearance throughout the center 60-feet of the bridge. These vertical clearances are made in reference to the Mean Water Level of Lake Washington. The normal operating schedule for Montlake Bridge operates in accordance with 33 CFR 117.1051(e).

    The deviation period will cover the following dates: from 8:30 a.m. to 11 a.m., and from 2:30 p.m. to 5 p.m. on September 3, 2016; from 11:30 a.m. to 2 p.m. and from 5:30 p.m. to 8 p.m. on September 10, 2016; from 2:30 p.m. to 5 p.m. and from 8:30 p.m. to 11 p.m. on September 17, 2016; from 3:30 p.m. to 6 p.m. and from 8:30 p.m. to 11 p.m. on September 30, 2016. The times for the closures on October 22, 2016, November 12, 2016, and November 19, 2016 will be determined, and announced in the Coast Guard's Local Notice to Mariners and Broadcast Notice to Mariners as they become available. Due to NCAA television scheduling, the times for the games are not currently available. The bridge shall operate in accordance to 33 CFR 117.1051(e) at all other times. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass.

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

    Dated: August 15, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-19930 Filed 8-19-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0729] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the community to participate in the FroYo Run event. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 7:30 a.m. to 10 a.m. on August 20, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0729] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected]

    SUPPLEMENTARY INFORMATION:

    California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The vertical lift bridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position from 7:30 a.m. to 10 a.m. on August 20, 2016, to allow the community to participate in the FroYo Run event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: Aug 17, 2016. D.H. Sulouff, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2016-20019 Filed 8-19-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0725] RIN 1625-AA00 Safety Zone; Lake Superior Dragon Boat Festival Fireworks Display; Superior Bay, Superior, WI AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a safety zone in Superior Bay near Barkers Island in Superior, WI. This safety zone is intended to restrict vessels from specified waters in the Superior Bay during the Dragon Boat Festival Fireworks Display. This safety zone is necessary to protect spectators from the hazards associated with the fireworks display.

    DATES:

    This rule is effective from 8:30 p.m. through 10:30 p.m. on August 26, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0725 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. Because the event is scheduled for August 26, 2016, there is insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be both impracticable and contrary to public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the event.

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

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that potential hazards associated with fireworks displays starting at 9:00 p.m. on August 26, 2016 will be a safety concern for anyone within a 350-foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 8:30 p.m. through 10:30 p.m. August 26, 2016. The safety zone will cover all navigable waters within an area bounded by a circle with a 350-foot radius of the fireworks display launching site located in Superior, WI at coordinates 46°43′28″ N, 092°03′47″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Superior Bay in Superior, WI for 2 hours and during a time of year when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132 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 because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting no more than 2 hours that will prohibit entry within a 350-foot radius from where a fireworks display will be conducted. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T09-0725 to read as follows:
    § 165.T09-0725 Safety zone; Lake Superior Dragon Boat Festival Fireworks Display, Superior Bay, Superior, WI.

    (a) Location. All waters of Superior Bay within an area bounded by a circle with a 350-foot radius at position 46°43′28″ N., 092°03′47″ W.

    (b) Effective period. This safety zone is effective from 8:30 p.m. through 10:30 p.m. on August 26, 2016.

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

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

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

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

    Dated: August 16, 2016. E.E. Williams, Commander, U.S. Coast Guard, Captain of the Port Duluth.
    [FR Doc. 2016-19943 Filed 8-19-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0642; FRL-9950-91-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Commonwealth of Virginia state implementation plan (SIP). These revisions pertain to preconstruction permitting requirements under Virginia's minor New Source Review (NSR) program. EPA is approving these revisions to the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on October 21, 2016 without further notice, unless EPA receives adverse written comment by September 21, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2015-0642 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 Talley, (215) 814-2117, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On July 15, 2013, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of amendments to the Virginia Department of Environmental Quality's (VADEQ) minor New Source Review (NSR) program, as well as a complete recodification of those regulations.

    On July 24, 1996, EPA took final action to approve in part and disapprove in part a revision to the Virginia SIP relating to minor NSR permitting requirements. See 61 FR 38388. EPA disapproved revisions to the public participation requirements which were, at the time, codified at Virginia Regulations (VR) section 120-08-1. Specifically, EPA disapproved sections 120-08-01G.1 and .01G.4.b because they purported to exempt major modifications of less than 100 tons per year (tpy) from the prescribed public participation procedures, contrary to the requirements of 40 CFR 51.161. This left the previously approved SIP requirements of VR section 120-08-01C.4 in place to govern public participation. EPA approved the remainder of the submittal into Virginia's SIP.

    Subsequently, on April 21, 2000, EPA took final action to approve a revision to the Virginia SIP which did not revise any of the substantive requirements, but included in the SIP Virginia's reorganized and recodified regulations from the VR-120-08-01 format to match the Virginia Administrative Code (VAC) format (e.g., 9VAC5-80-10). See 78 FR 21315.

    II. Summary of SIP Revision and EPA Analysis

    Virginia's July 15, 2013 submittal encompasses a number of revisions to Virginia's regulations that were completed at the Commonwealth level, but not submitted to and approved by EPA as revisions to the Virginia SIP. VADEQ compiled the various revisions and submitted them so that EPA could review the program as a whole. A thorough discussion of the details of the regulatory changes made by Virginia as well as EPA's analysis of those changes to the regulations and the Virginia SIP are located in the technical support document (TSD) in the docket for this action, available at www.regulations.gov, and will not be restated here.

    Among those revisions was the evolution and recodification of VADEQ's minor NSR program from 9VAC5 Chapter 80 sections 10 and 11 to Article 6 of Part II of 9VAC5 Chapter 80. Sections 10 and 11 of 9VAC5-80 are being removed from the SIP and replaced as part of this action. Additionally, the submittal includes revisions to 9VAC5-50, sections 240, 250, and 260. The submittal also includes revisions to the requirements for public participation under Article 6 which correct the deficiencies which were the reason for EPA's previously-mentioned July 24, 1996 disapproval action.

    9VAC5-50-240 has been revised to maintain consistency with revisions in the new Article 6; to clarify which emissions units are subject to the minor NSR regulations; and to appropriately exempt hazardous air pollutants (HAPs) regulated under 9VAC5-60, consistent with 40 CFR 51.166.

    Additionally, a number of revisions have been made to the best available control technology (BACT) requirements under Virginia's minor NSR program. The definition of BACT under 9VAC5-50-250 has been revised to provide for the consideration of additional factors in determining BACT (e.g., nature and amount of emissions, control efficiencies across industry source types, etc.). 9VAC5-50-260 has been revised to require BACT determinations for all emissions units subject to the minor NSR program, and to require that, for phased construction projects, BACT must be reviewed within 18 months of construction of each individual phase. 9VAC5-50-260 has also been revised to require BACT for all emissions units which are subject to the minor NSR program. These changes to 9VAC5-50 have been made in order to simplify the minor NSR program, and are appropriate and meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

    Generally, the new Article 6 regulations represent a recodification of the minor NSR program from section 10 and 11 of 9VAC5-80. Sections 10 and 11 are being deleted from the SIP because they are largely duplicative with the new provisions. In addition, the deficiency related to the public participation requirements identified in EPA's 1996 disapproval action has been corrected. Therefore, the previously approved public participation requirements under VR 120-08-01 are being removed from the SIP as well. Additionally, as discussed in more detail below, the revisions include new regulations designed to confer federal enforceability upon Virginia's program for regulating HAPs (consistent with 40 CFR parts 61 and 63) and the removal of provisions which were inadvertently included in the SIP by EPA's 1996 approval, and which inappropriately conferred federal enforceability upon Virginia's state-only enforceable provisions for regulating toxic air pollutants. Virginia's definition of “toxic air pollutant” is more broad than the federal “hazardous air pollutant,” and by inadvertently applying the minor NSR program to the former, Virginia's SIP went beyond what VADEQ intended. Specifically, the requirements of sections 1100I, 1105F, and 1170A are being added, and paragraph 1200B is being deleted from the SIP. These revisions are appropriate and meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

    The unit reconstruction requirements of 9VAC5-80-1100 have been revised to evaluate applicability for the reconstruction of an emissions unit via the replacement of some of its components in the same manner as any other modification. Additionally, provisions have been added to allow sources to opt into permit review, and to clarify applicability of fugitive emissions. Provisions have been added to sections 80-1100M, 1105C and D, and 1100C to regulate fine particulate matter with an aerodynamic diameter less than 2.5 micrometers (PM2.5) in a manner consistent with federal requirements, particularly related to the condensable fraction of PM2.5.

    9VAC5-80-1105 contains the exemptions formerly codified at section 80-11. Many of the revisions to these exemptions are administrative or clarifying in nature. However, there are some additions and deletions as well. New exemptions include, but are not limited to, those for mulch recycling operations, replacement units where the potential to emit (PTE) does not increase, engines and turbines which do not exceed 500 hours per year of operation, and exhaust flares at natural gas and coal bed methane extraction wells. Additionally, the emission-rate based exemption for VOC coating operations, and the provisions which prohibit the exemption of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) sources have been deleted. Exemption thresholds for PM2.5 have been added, below which minor NSR will not apply.

    The new (and existing) exemptions exist because VADEQ considers the associated emissions to be de minimis, and not worth the administrative effort required to issue permits for de minimis emissions. As a safeguard, however, provisions have been added to state that any exemption from the minor NSR requirements does not create an exemption from major NSR. All such sources would be considered emissions sources for purposes of determining major source status under Virginia's SIP approved major NSR program.

    The definitions under 9VAC5-80-1110 have been revised to make the minor NSR program more compatible with the major NSR program. Additional revisions of note include: The addition of provisions for ensuring that permit terms relating to emissions caps are practically enforceable (9VAC5-80-1180B, C, and D); criteria relating to invalidation of permits due to delays in construction (9VAC5-80-1210B); criteria for issuance of general permits (9VAC5-80-1250); provisions relating to permit modifications (9VAC5-80-1260 through 1300); as well as several non-substantive, clarifying revisions.

    All of the new and revised provisions of 9VAC5-80 Article 6 meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement as EPA finds Virginia's conclusions regarding de minimis emissions reasonable.

    Additional details regarding Virginia's amended regulations for its minor NSR program and EPA's detailed analysis of those regulations for the Virginia SIP are located in the TSD in the docket for this action, available at www.regulations.gov, and will not be restated here.

    III. Final Action

    EPA is approving Virginia's July 15, 2013 submittal as a revision to the Virginia SIP because it meets the federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C). Additionally, the revisions (and in particular the deletions) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement given de minimus emissions impacts and removal of duplicative measures. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 21, 2016 without further notice unless EPA receives adverse comment by September 21, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its NSR program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    V. Incorporation by Reference

    In this rulemaking action, 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 Virginia regulations as described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.1 The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    VI. Statutory and Executive Order Reviews A. General Requirements

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

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 as defined in 18 U.S.C. 1151 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).

    B. Submission to Congress and the Comptroller General

    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).

    C. Petitions for Judicial Review

    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 21, 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 this 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 action. This action pertaining to Virginia's minor NSR program 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: August 9, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 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 VV—Virginia 2. In § 52.2420, the table in paragraph (c) is amended by: a. Removing the section entitled “9VAC5, Chapter 80 Permits for Stationary Sources [Part VIII]” including the entries for Sections 5-80-10, 10A through 10P, VR120-08-01C.4.b and .01C.4.c, and 5-80-11; b. Revising the entries for Sections 5-50-240, 5-50-250, and 5-50-260; c. Adding the heading “Article 6—Permits for New and Modified Stationary Sources” and entries for Sections 5-80-1100 through 5-80-1300 immediately following the entry for 5-80-1040.

    The revisions and additions read as follows:

    § 52.2420 Identification of plan.

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes State
  • citation
  • Title/Subject State
  • effective
  • date
  • EPA Approval date Explanation [former SIP citation]
    *         *         *         *         *         *         * 9 VAC 5, Chapter 50 New and Modified Stationary Sources [Part V] *         *         *         *         *         *         * Article 4 Standards of Performance for Stationary Sources (Rule 5-4) 5-50-240 Applicability and designation of affected facility 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraphs A and C are revised. 5-50-250 Definitions 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraphs A-C are revised. 5-50-260 Standards for stationary sources 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraphs A-D are revised. *         *         *         *         *         *         * 9 VAC 5, Chapter 80 Permits for Stationary Sources [Part VIII] *         *         *         *         *         *         * Article 6—Permits for New and Modified Stationary Sources 5-80-1100 Applicability 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1105 Permit Exemptions 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraph E is excluded. 5-80-1110 Definitions 11/7/12 8/22/16 [Insert Federal Register Citation] The definition at paragraph 5 under “Regulated air pollutant,” and the definition of “Toxic pollutant” are excluded. 5-80-1120 General 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1130 Reserved Excluded from SIP. 5-80-1140 Applications 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1150 Application information required 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1160 Action on permit application 11/7/12 8/22/16 [Insert Federal Register Citation] The latter portion of paragraph D (beginning with “. . . direct consideration by the board . . .”) is excluded. 5-80-1170 Public participation 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraphs F and G are excluded. See § 52.2423(o). 5-80-1180 Standards and conditions for granting permits 11/7/12 8/22/16 [Insert Federal Register Citation] The portion of paragraph A.1 pertaining to hazardous air pollutant sources as proscribed under 9VAC5-60 is excluded. 5-80-1190 Application review and analysis 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraph 2 is excluded. 5-80-1200 Compliance determination and verification by performance testing 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1210 Permit invalidation, suspension, revocation and enforcement 11/7/12 8/22/16 [Insert Federal Register Citation] Paragraph B is excluded. 5-80-1220 Existence of permit no defense 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1230 Compliance with local zoning 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1240 Transfer of permits 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1250 General permits 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1260 Action to combine permit terms and conditions 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1270 Actions to change permits 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1280 Administrative permit amendments 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1290 Minor permit amendments 11/7/12 8/22/16 [Insert Federal Register Citation] 5-80-1300 Significant amendment procedures 11/7/12 8/22/16 [Insert Federal Register Citation] *         *         *         *         *         *         *
    [FR Doc. 2016-19770 Filed 8-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0247; FRL-9950-82-Region 4] Air Plan Approval; South Carolina; Prong 4-2008 Ozone, 2010 NO2, SO2, and 2012 PM2.5 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is conditionally approving the portions of revisions to the South Carolina State Implementation Plan (SIP), submitted by the South Carolina Department of Health and Environmental Control (SC DHEC), addressing the Clean Air Act (CAA or Act) visibility transport (prong 4) infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-hour Nitrogen Dioxide (NO2), 2010 1-hour Sulfur Dioxide (SO2), and 2012 annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure SIP.” Specifically, EPA is conditionally approving the prong 4 portions of South Carolina's July 17, 2008, 8-hour Ozone infrastructure SIP submission; April 30, 2014, 2010 1-hour NO2 infrastructure SIP submission; May 8, 2014, 2010 1-hour SO2 infrastructure SIP submission; and December 18, 2015, 2012 annual PM2.5 infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

    DATES:

    This rule will be effective September 21, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0247. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as the requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

    The prong 4 portions of South Carolina's infrastructure SIP submissions for the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS cite to the State's regional haze SIP as satisfying prong 4 requirements.1 However, the State may not currently rely on its regional haze SIP to satisfy these requirements because EPA has not yet fully approved South Carolina's regional haze SIP as it relies on the Clean Air Interstate Rule (CAIR) to satisfy the nitrogen oxides (NOX) and SO2 Best Available Retrofit Technology (BART) requirements for the CAIR-subject electric generating units (EGUs) in the State and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals.2 Therefore, on April 19, 2016, South Carolina submitted a commitment letter to EPA requesting conditional approval of the prong 4 portions of the aforementioned infrastructure SIP revisions.

    1 The April 30, 2014, 2010 1-hour NO2 submission; May 8, 2014, 2010 1-hour SO2 submission; and December 18, 2015 also cite to the State's December 2012 regional haze progress report.

    2 CAIR, promulgated in 2005, required 27 states and the District of Columbia to reduce emissions of NOX and SO2 that significantly contribute to, or interfere with maintenance of, the 1997 NAAQS for fine particulates and/or ozone in any downwind state. CAIR imposed specified emissions reduction requirements on each affected State, and established several EPA-administered cap and trade programs for EGUs that States could join as a means to meet these requirements.

    In its commitment letter, South Carolina commits to satisfy the prong 4 requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012 PM2.5 NAAQS by providing a SIP revision within one year of EPA's final conditional approval of the prong 4 portions of the infrastructure SIP revisions and provides an anticipated schedule for these revisions. Specifically, South Carolina commits “to provide to the EPA a SIP revision that adopts provisions for participation in the Cross-State Air Pollution Rule (“CSAPR”) annual NOx and annual SO2 trading programs, including annual NOX and annual SO2 budgets. Any adopted budgets would be at least as stringent as the budgets codified for South Carolina at 40 CFR 97.710(a) (annual SO2 group 2 trading budgets) and 40 CFR 97.410(a) (annual NOX trading budgets), as promulgated in the Federal Register notice of June 12, 2012 (77 FR 34,830). We will rely on this SIP revision adopting such budgets to submit a concurrent SIP revision that will satisfy the visibility requirements of section 110(a)(2)(D)(i)(II) and EPA's corresponding guidance on those requirements. We commit to provide this concurrent SIP revision within the one-year period described above. This concurrent SIP revision will rely on either an analysis provided therein showing that emissions from sources in South Carolina will not interfere with the attainment of the reasonable progress goals of other states or on a fully approved regional haze SIP relying on CSAPR. If the concurrent SIP revision relies on a fully approvable regional haze SIP, we commit to provide this regional haze SIP to EPA within the one year period described above.”

    If South Carolina meets its commitment within one year of final conditional approval, the prong 4 portions of the conditionally-approved infrastructure SIP submissions will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision(s). However, if the State fails to submit these revisions within the one-year timeframe, the conditional approval will automatically become a disapproval one year from EPA's final conditional approval and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. If the conditional approval is converted to a disapproval, the final disapproval triggers the federal implementation plan requirement under CAA section 110(c).

    In a notice of proposed rulemaking (NPRM) published on June 8, 2016 (81 FR 36842), EPA proposed to conditionally approve the prong 4 portions of the aforementioned infrastructure SIP submissions. The NPRM provides additional detail regarding the rationale for EPA's action, including further discussion of the Prong 4 requirements and the basis for South Carolina's commitment letter. Comments on the proposed rulemaking were due on or before July 8, 2016. EPA received no adverse comments on the proposed action.

    II. Final Action

    EPA is conditionally approving the prong 4 portions of South Carolina's July 17, 2008, 8-hour Ozone infrastructure SIP submission; April 30, 2014, 2010 1-hour NO2 infrastructure SIP submission; May 8, 2014, 2010 1-hour SO2 infrastructure SIP submission; and December 18, 2015, 2012 annual PM2.5 infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

    III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, 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).

    In addition, this action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, South Carolina statute 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that because this rule does not have substantial direct effects on an Indian Tribe because, as noted above, this action is not approving any specific rule, but rather conditionally approving South Carolina's already approved SIP meets certain CAA requirements. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. 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 21, 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Sulfur dioxide, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4.

    40 CFR part 52 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 PP—South Carolina 2. Section 52.2127 is added to read as follows:
    § 52.2127 Conditional approval.

    South Carolina submitted a letter to EPA on April 19, 2016, with a commitment to address the State Implementation Plan deficiencies regarding requirements of Clean Air Act section 110(a)(2)(D)(i)(II) related to interference with measures to protect visibility in another state (prong 4) for the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS. EPA conditionally approved the prong 4 portions of South Carolina's July 17, 2008, 8-hour Ozone infrastructure SIP submission; April 30, 2014, 2010 1-hour NO2 infrastructure SIP submission; May 8, 2014, 2010 1-hour SO2 infrastructure SIP submission; and December 18, 2015, 2012 annual PM2.5 infrastructure SIP submission in an action published in the Federal Register on August 22, 2016. If South Carolina fails to meet its commitment by August 22, 2017, the conditional approval will automatically become a disapproval on that date and EPA will issue a finding of disapproval.

    [FR Doc. 2016-19537 Filed 8-19-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Parts 10, 60, 78, 79, 80, 206, and 209 [Docket ID FEMA-2016-0018] RIN 1660-AA87 Removal of Environmental Considerations Regulations AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Emergency Management Agency (FEMA), a component of the Department of Homeland Security (DHS), is removing its environmental considerations regulations and replacing the regulations with a new Directive and Instruction on environmental planning and historical preservation requirements. DHS instituted procedures for environmental considerations that apply Department-wide (including FEMA) in a new Directive and Instruction. FEMA is issuing supplemental procedures to the new DHS Directive and Instruction; a Notice of Availability for these supplemental procedures appears in the Notice section of today's edition of the Federal Register.

    DATES:

    This final rule is effective August 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Katherine Zeringue, Environmental Officer, Federal Emergency Management Agency, 400 C Street SW., Suite 313, Washington, DC 20472-3020; 202-212-2282, or [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    The National Environmental Policy Act (NEPA) 1 declares a national policy to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man, and to enrich the understanding of the ecological systems and natural resources important to the Nation.2 NEPA establishes a Council on Environmental Quality (CEQ) within the Executive Office of the President, composed of members who are appointed by the President with the advice and consent of the Senate, to analyze and interpret environmental trends and information of all kinds, to appraise programs and activities of the Federal government in light of NEPA's purpose, to be conscious of and responsive to the scientific, economic, social, esthetic, and cultural needs and interests of the Nation, and to formulate and recommend national policies to promote the improvement of the quality of the environment.3

    1 42 U.S.C. 4321, 4331-4335, 4344, 4365.

    2 See 42 U.S.C. 4321.

    3 See 42 U.S.C. 4342; see also 42 U.S.C. 4344.

    CEQ has promulgated regulations at 40 CFR parts 1500 to 1518. The CEQ regulations set out specific procedures that Federal agencies must follow to comply with NEPA.4 The CEQ regulations require each agency to “adopt procedures” to supplement the CEQ regulations.5

    4 See 40 CFR 1507.1.

    5 See 40 CFR 1507.3(a).

    FEMA established its Environmental Considerations regulations via a final rule on June 18, 1980, which established part 10 of 44 CFR.6 Prior to publishing a final rule, FEMA published a proposed rule on December 6, 1979, seeking public comment on the new regulations.7 FEMA received two public comments on the proposed rule. FEMA has not substantively revised 44 CFR part 10 since promulgating a final rule in 1980.

    6 See 45 FR 41141.

    7 See 44 FR 70197.

    II. Discussion of Removal of Part 10

    FEMA was an independent agency when it promulgated part 10 in 1980. In 2003, FEMA became a component of the Department of Homeland Security (DHS).8 DHS initially issued Management Directive 5100.1 to ensure DHS components complied with the requirements of NEPA. On April 19, 2006, DHS promulgated a comprehensive Directive 023-01 to establish the policies and procedures for assuring compliance with NEPA. DHS components were required to comply with the DHS Directive unless a pre-existing regulation required an action conflicting with the Directive. On November 26, 2014, DHS issued revised NEPA implementing procedures, applicable to all DHS components, via a Directive and Instruction, which went into effect on March 26, 2015.9 The DHS Directive and Instruction are included in the docket for this rulemaking at www.regulations.gov.

    8 Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (Nov. 25, 2002). See also 6 U.S.C. 313 (“There is in the Department [of Homeland Security] the Federal Emergency Management Agency.”)

    9 See 79 FR 70538 (Nov. 26, 2014). DHS published a draft Directive and Instruction for public comment on June 5, 2014. See 79 FR 32563.

    Prior to the issuance of the 2006 DHS Directive and Instruction, DHS did not have Department-wide NEPA procedures, but rather, each component of DHS followed its own implementing procedures. FEMA's implementing procedures, as already noted, are at 44 CFR part 10.

    As a component of DHS, FEMA is required to follow DHS Directives and Instructions that apply to the whole Department. As such, FEMA is removing 44 CFR part 10, so that it may follow completely the new DHS Directive and Instruction. Accordingly, FEMA is also removing references to Part 10 throughout the regulations at 44 CFR and, where appropriate, replacing them with references to applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy. The DHS Directive and Instruction allow each DHS component to issue supplemental procedures. FEMA is issuing supplemental procedures in the form of a Directive and Instruction, a Notice of Availability for which appears in the Notice section of today's edition of the Federal Register. The similarities and differences between 44 CFR part 10 and the new supplemental procedures (the DHS Directive and Instruction and the FEMA Directive and Instruction) are described in the following section-by-section analysis. The changes to references to 44 CFR part 10 are also discussed below.

    III. Section-by-Section Analysis A. 44 CFR 10.1 Background and Purpose

    Paragraph (a) of § 10.1 describes the purpose of 44 CFR part 10: to implement the CEQ regulations and to provide policy and procedures to enable FEMA officials to be informed of and take into account environmental considerations when authorizing or approving major FEMA actions that significantly affect the environment of the United States. The new supplemental procedures have a broader scope than Part 10. Part 10 focuses solely on NEPA implementation; the new supplemental procedures will address all environmental and historic preservation compliance (commonly referred to as “EHP” compliance). EHP compliance includes NEPA compliance but is broader to include other legal requirements for environmental and historic preservation. For example, the new supplemental procedures address compliance with the National Historic Preservation Act,10 the Endangered Species Act,11 Executive Order 11988 “Floodplain Management,” and Executive Order 12148 “Protection of Wetlands,” in addition to NEPA compliance.12 The introductory paragraphs of the FEMA Directive and FEMA Instruction reflect this broader scope.13

    10 16 U.S.C. 470h-2(c).

    11 16 U.S.C. 1531.

    12 The FEMA Directive and Instruction do not supersede 44 CFR part 9, FEMA's implementing regulations for EO 11988 and EO 11990 (the precursor to EO 12148). Rather, these documents provide guidance for FEMA's implementing regulations of that EO.

    13 The Introduction to the FEMA Directive and Section 1.5.A of the FEMA Instruction state the following: “Environmental stewardship, preservation of historic and cultural resources, and sustainability are complementary goals to the emergency management mission and activities of FEMA. FEMA promotes these goals to support development of resilient communities in light of disasters, sea level rise, climate change, and other impacts that threaten the human environment. Environmental, historic, and cultural resources are important considerations when preparing for, responding to, recovering from, and mitigating hazards to the United States. Protection and stewardship of the Nation's natural resources including floodplains and wetlands, coastal barriers, forests and fauna, biodiversity, endangered species, habitats, and other natural landscapes provide increased protection to communities throughout the Nation and support resiliency. Consistent with the goals of environmental and historic preservation laws and the policies of DHS, FEMA promotes antidegradation and balances resource use and development with sustainability and use of renewable resources to manage these natural and cultural resources.”

    Paragraphs (b) and (c) of § 10.1 restate the CEQ requirements directing all Federal agencies to adopt procedures to supplement the CEQ regulations, and that the provisions of Part 10 must be read together with the CEQ regulations and NEPA as a whole when applying the NEPA process. As stated above, the new DHS Directive and Instruction, as well as the FEMA Directive and Instruction, fulfill the CEQ requirement to adopt procedures to supplement the CEQ regulations.14

    14 See DHS Directive 023-01, Section I, “This Directive and the Instruction Manual adopt and supplement the CEQ regulations and are to be used in conjunction with those regulations.”

    B. 44 CFR 10.2 Applicability and Scope

    Section 10.2 states that Part 10 applies to FEMA, including any office or administration of FEMA, and the FEMA regional offices. The applicability is unchanged under the new procedures, which apply to all components of FEMA.15

    15 Section II of the FEMA Directive states that “Policies in this EHP Directive apply to all FEMA headquarters, regional and field offices, programs, and directorates inclusive of all associated operations and facilities and including Joint Field Offices (JFO).”

    C. 44 CFR 10.3 Definitions

    Paragraph (a) of § 10.3 defines “Regional Administrator” as “the Regional Administrator of the Federal Emergency Management Agency for the region in which FEMA is acting.” The Regional Administrator positions have not changed since FEMA promulgated Part 10 in 1980 but the Homeland Security Act sets forth the responsibilities of the Regional Administrators.16 The FEMA Directive and Instruction do not further define “Regional Administrator” per se, but the FEMA Directive does describe the Regional Administrator's duties in detail at Section VI.C.

    16 6 U.S.C. 317. To view the organizational structure of FEMA and FEMA regions, go to this link: http://www.fema.gov/about-agency.

    Paragraph (c) of § 10.3 defines “Environmental Officer” as the “Director, Office of Environmental Planning and Historic Preservation, Mitigation Directorate, or his or her designee.” The title of this position is relatively unchanged: The “Director of the Office of Environmental Planning and Historic Preservation (OEHP).” The FEMA Directive, which describes the duties of this position in section VI.E, states that this position is designated by the FEMA Administrator and has the authority and responsibility to administer the OEHP and ensure its functional integration into FEMA missions. The FEMA Directive and Instruction do refer to an “Environmental Officer,” but it is no longer the Director of OEHP. Now, the Environmental Officer has duties distinct from the Director of OEHP, and is designated by and reports directly to the Director of OEHP. The FEMA Directive describes the duties of the Environmental Officer in Section VI.G.

    Paragraph (b) of § 10.3 states that the other terms used in Part 10 are defined in the CEQ regulations at 40 CFR part 1508. The DHS Directive includes all CEQ definitions that FEMA uses in its Directive and Instruction. These include definitions for “categorical exclusion (CATEX),” 17 “environmental assessment (EA),” 18 “environmental impact statement (EIS),” 19 “finding of no significant impact,” 20 “human environment,” 21 and “record of decision”.22

    17 40 CFR 1508.4; DHS Instruction section II.

    18 40 CFR 1508.9; DHS Instruction section II.

    19 40 CFR 1508.11; DHS Instruction section II.

    20 40 CFR 1508.13; DHS Instruction section II.

    21 40 CFR 1508.14; DHS Instruction section II.

    22 40 CFR 1505.2; DHS Instruction section II.

    D. 44 CFR 10.4 Policy

    Section 10.4(a) sets forth FEMA's goals to ensure that FEMA's actions, including disaster planning, response and recovery, and hazard mitigation and flood insurance are carried out in a manner consistent with NEPA, and that all practical means and measures are used to protect, restore, and enhance the quality of the environment, and to avoid or minimize adverse environmental consequences. The introduction to the FEMA Directive generally includes these goals, and FEMA Instruction section 1.5 also generally sets forth the policies included in 44 CFR 10.4. For example, paragraph 10.4(a)(1), regarding achieving the use of the environment without degradation, and paragraph 10.4(a)(3), regarding achieving a balance between resource use and development within the sustained carrying capacity of the ecosystem involved, are now included in the introduction of the FEMA Directive and Section 1.5.A of the Instruction, which state that “FEMA promotes antidegradation and balances resource use and development with sustainability and use of renewable resources to manage these natural and cultural resources.” Paragraph (a)(2) of § 10.4, addressing the preservation of historic, cultural and natural aspects of national heritage, is addressed in sections 1.5.A and B of the FEMA Instruction. Sections 1.5.B.3.a and b state that FEMA will conduct NEPA and other EHP reviews early in the decision making process and before making a decision “that adversely affects natural or cultural resources,” and will tailor the NEPA process so as to spend minimal time and resources on decisions “that do not have potential to adversely affect natural and cultural resources.”

    E. 44 CFR 10.5 Responsibilities

    Section 10.5 sets out the responsibilities of the FEMA Regional Administrators, the Environmental Officer, the Heads of the Offices, Directorates, and Administrations of FEMA, and the Office of Chief Counsel.

    The responsibilities of the FEMA Regional Administrators, which are in paragraph (a) of § 10.5, appear in section VI.C of the FEMA Directive. Note that many of the responsibilities of the FEMA Regional Administrators that appear in paragraph (a) of § 10.5 now fall under or are shared with other positions as outlined in the FEMA Directive, to reflect current FEMA practice. Paragraphs (a)(1) and (2) of § 10.5 require the Regional Administrators to prepare a finding of no significant impact, an EA (to be sent to the Environmental Officer and the Office of Chief Counsel), or EIS for each action not categorically excluded from Part 10 and falling within their respective jurisdictions. These duties appear generally under section VI.C, and more specifically under section VI.C.2.viii, of the FEMA Directive.

    Paragraph (a)(3) of § 10.5 requires Regional Administrators to coordinate and provide information regarding environmental review with applicants for FEMA assistance. This duty appears in section VI.C.1.vii of the FEMA Directive, which states that Regional Administrators shall support early, proactive, and comprehensive outreach processes for EHP in their Regions with resource/regulatory agencies, applicants, and the public.

    Paragraph (a)(4) of § 10.5 requires Regional Administrators to prepare and maintain an administrative record for each proposal that is determined to be categorically excluded from Part 10. Similarly, section VI.C.2.viii of the FEMA Directive states that Regional Administrators must ensure appropriate documentation of records of environmental consideration for CATEXs.

    Paragraph (a)(5) of § 10.5 requires Regional Administrators to involve environmental agencies, applicants, and the public to the extent practicable in preparing EAs. The FEMA Directive describes this duty more generally as public outreach, falling under the positions of the Administrator (section VI.A.2.iv), the Heads of FEMA Offices, Programs, and Directorates (section VI.B.2.vi), the Regional Administrators (section VI.C.1.vii), the Director of the Office of Environmental Planning and Historic Preservation (section VI.E.1.iv), the Regional Environmental Officers (section VI.H.1.iii), and the EHP Program Coordinator (section VI.L.1.iv).

    Paragraph (a)(6) requires the Regional Administrator to prepare, as required, a supplement to either the draft or final EIS. This duty falls under general NEPA compliance duties in the FEMA Directive. Section VI.B.2.vii of the FEMA Directive requires the Heads of Offices, Programs, and Directorates in FEMA to ensure the completion of appropriate EHP documentation for actions within their responsibility. Section VI.C.2.viii includes the same requirement for the Regional Administrators, and section VI.D.1.vi includes the same requirement for Federal Coordinating Officers. Section VI.E.4.ii.a requires the Director of the Office of Environmental Planning and Historic Preservation to oversee and ensure these duties are fulfilled. Section VI.H.4.iii.a requires the Regional Environmental Officers to ensure completion of appropriate NEPA documentation as well.

    Paragraph (a)(7) requires the Regional Administrator to circulate draft and final EISs. This duty is no longer necessary and the FEMA Directive and Instruction do not include this specific provision. The appropriate FEMA personnel (such as the Environmental Officer) handle internal agency circulation of any environmental documentation falling under their responsibility as part of normal business practice.

    Paragraph (a)(8) requires Regional Administrators to ensure that decisions are made in accordance with the policies and procedures of NEPA and Part 10, and to prepare a concise public record of such decisions. The FEMA Directive includes these duties generally for the Administrator (section VI.A), the Heads of Offices, Programs, and Directorates in FEMA (section VI.B.2.i: “Ensure that all policies, programs, activities, and operations in their respective offices, programs, or directorates comply with all applicable EHP requirements” and section VI.B.2.vii: “Ensure completion of appropriate EHP documentation for actions within their responsibility. This responsibility includes ensuring that the action or project record includes adequate EHP documentation.”), the Regional Administrators (section VI.C.2.i: “Ensure that all policies, programs, activities, and operations in their regions comply with all applicable EHP requirements”, section VI.C.2.ii: “Consider the effects of their decisions on environmental, historic, and cultural resources in accordance with NEPA, CEQ regulations, the DHS Instruction 023-01, the EHP Instruction, and this EHP Directive”, and section VI.C.2.viii: “Ensure appropriate documentation of EHP compliance for actions within their responsibility, such as Records of Environmental Consideration (RECs) for CATEXs, . . . This includes ensuring that the administrative record incorporates EHP documentation and a public record of decisions made in accordance with the policies and procedures of NEPA and other EHP requirements.”), the Federal Coordinating Officer (section VI.D.1.ii: “Perform oversight and monitoring of the EHP review process” and section VI.D.1.vi: “Ensure appropriate documentation of the EHP review process for actions within their responsibility”), the Director of OEHP (section VI.E.2.i: “Provide the quality assurance and quality control function for OEHP”), and the Regional Environmental Officers (section VI.H.2: “Support EHP compliance within their Regions” and section VI.H.4.iii.a: “Support completion of the appropriate EHP review process, including the analyses and documentation for EHP requirements”).

    Paragraph (a)(9) requires Regional Administrators to consider mitigating measures to avoid or minimize environmental harm, and, in particular, harm to and within floodplains and wetlands. The FEMA Directive includes this Regional Administrator responsibility in section VI.C.2.iv. The FEMA Directive also requires the Administrator to ensure FEMA Offices, Programs, and Directorates recommend EHP mitigation for FEMA's direct actions and grant decisions when appropriate (section VI.A.1.vi), requires the Federal Coordinating Officer to incorporate EHP mitigation measures as appropriate and practicable (section VI.D.1.vii), and requires the Environmental Officer to promote EHP mitigation as part of applicant projects and support enforcement of associated monitoring and EHP mitigation measures (section VI.G.3.i).

    Paragraph (a)(9) requires the Regional Administrators to review and comment upon, as appropriate, EAs and impact statements of other Federal agencies and of State and local entities within their respective regions. The FEMA Directive includes this as a responsibility of the Environmental Officer, stating in section VI.G.2.vii that the Environmental Officer shall “Review and comment upon, as appropriate and following notification to and approval by DHS SEP, EAs and EISs prepared by other Federal agencies or State and local entities that affect FEMA programs.”

    The responsibilities of the Environmental Officer appear in paragraph (b) of § 10.5. The FEMA Directive includes these duties under two separate positions, the Director of OEHP (section VI.E) and the Environmental Officer (section VI.G). The Director of OEHP oversees the position of the Environmental Officer.

    Paragraph (b)(1) states that the Environmental Officer shall determine, on the basis of the EA, whether an EIS is required, or whether a finding of no significant impact shall be prepared. The FEMA Directive does not specifically address this particular task, but it does require the Environmental Officer to oversee the EHP review process (section VI.G.2.i), and the Office of Chief Counsel provides legal sufficiency reviews, when appropriate, for EHP analyses and documents (section VI.K.2.iv), and as such these entities assist in making the determination of whether an action requires an EIS.

    Paragraph (b)(2) requires the Environmental Officer to review all proposed changes or additions to the list of CATEXs. This responsibility appears in section VI.G.1.i of the FEMA Directive, under the duties of the Environmental Officer.

    Paragraph (b)(3) requires the Environmental Officer to review all findings of no significant impact. This responsibility falls generally under the duties of the Environmental Officer in section VI.G.2.v of the FEMA Directive, which states that the Environmental Officer shall review draft and final environmental documentation and analyses prepared by OEHP or other headquarters offices when EHP Approval Authority has not been delegated to those offices. If authority is delegated, this task may fall to the Regional Environmental Officer (section VI.H.2.v) or the EHP Program Coordinator (section VI.L.1.ix) as oversight and review of environmental documentation and analyses is included in EHP Approval Authority.

    Paragraph (b)(4) requires the Environmental Officer to review all proposed draft and final environmental statements. As with the review of findings of no significant impact, this responsibility falls generally under the duties of the Environmental Officer in section VI.G.2.v of the FEMA Directive, which states that the Environmental Officer shall review draft and final environmental documentation and analyses prepared by OEHP or other headquarters offices when EHP Approval Authority has not been delegated to those offices. If authority is delegated, this task may fall to the Regional Environmental Officer (section VI.H.2.v) or the EHP Program Coordinator (section VI.L.1.ix).

    Paragraph (b)(5) requires the Environmental Officer to publish the required notices in the Federal Register. While not mentioned specifically in the FEMA Directive, this duty would fall under the Environmental Officer's general duties of overseeing the EHP review process for FEMA (section VI.G.2.i).

    Paragraph (b)(6) requires the Environmental Officer to provide assistance in the preparation of EAs and impact statements and assign lead agency responsibility when more than one FEMA office or administration is involved. In the FEMA Directive, this duty falls under the Environmental Officer in section VI.G.3.ii, which states that the Environmental Officer shall determine which FEMA program will lead the EHP review process for a project that crosses multiple FEMA programs when the FEMA programs involved in the project cannot agree upon who will serve as the lead, and in section VI.G.2.iv, which states that the Environmental Officer will provide assistance in the preparation of environmental documentation in the Regions and Programs as appropriate and assign lead agency responsibility when more than one FEMA office or administration is involved.

    Paragraph (b)(7) requires the Environmental Officer to direct the preparation of environmental documents for specific actions when required. While not mentioned specifically in the FEMA Directive, this duty would fall under the Environmental Officer's general duties of overseeing the EHP review process for FEMA (section VI.G.2.i).

    Paragraph (b)(8) requires the Environmental Officer to comply with the requirements of Part 10 when the FEMA Administrator promulgates regulations, procedures, or other issuances making or amending Agency policy. The Director of OEHP retains this duty generally to follow the requirements of the Agency's NEPA procedures for any Agency-wide action. The FEMA Directive states that it is the policy of FEMA to comply with all EHP Requirements, including all applicable laws, regulations, and executive orders, and it is the responsibility of the Heads of Offices, Programs, and Directorates with support from the Director of OEHP to comply with the Agency's policy (section VI.B.2.i and VI.E.2).

    Paragraph (b)(9) requires the Environmental Officer to provide, when appropriate, consolidated FEMA comments on draft and final impact statements prepared for the issuance of regulations and procedures of other agencies. The FEMA Directive includes this requirement under the responsibilities of the Environmental Officer at section VI.G.2.vii, which states that the Environmental Officer shall review and comment upon, as appropriate, EAs and EISs of other Federal agencies.

    Paragraph (b)(10) requires the Environmental Officer to review FEMA issuances that have environmental implications. While not mentioned specifically in the FEMA Directive, this duty would fall under the Environmental Officer's general duties of overseeing the EHP review process for FEMA (section VI.G.2.i).

    Paragraph (b)(11) states that the Environmental Officer shall maintain liaison with CEQ, the Environmental Protection Agency, the Office of Management and Budget (OMB), other Federal agencies, and State and local groups, with respect to environmental analysis for FEMA actions affecting the environment. Under the DHS Directive section IV.B.2, the DHS Director of Sustainability and Environmental Programs (SEP) serves, unless otherwise delegated, as the single point of contact for DHS on NEPA and NEPA related-matters in interactions with CEQ, the OMB, the Advisory Council on Historic Preservation, and other Federal agency headquarters. Under the FEMA Directive section VI.G.2.iii, the Environmental Officer serves as the liaison with other Federal, State, and local agencies regarding environmental analyses for FEMA actions.

    The responsibilities of the Heads of the Offices, Directorates, and Administrations of FEMA, which are listed in paragraph (c) of § 10.5, appear in section VI.B of the FEMA Directive.

    Paragraph (c)(1) requires the Heads of the Offices, Directorates, and Administrations of FEMA to assess environmental consequences of proposed and ongoing programs within their respective organizational units. Section VI.B.2.ii of the FEMA Directive requires these entities to assess EHP requirements of proposed, new, and ongoing programs, policies, plans and projects within their organizational units before they make decisions or take action. Section VI.B.1.ii requires these entities to incorporate EHP review processes into development of regulations, procedures, and other policies for compliance with EHP requirements.

    Paragraph (c)(2) requires the Heads of the Offices, Directorates, and Administrations of FEMA to prepare and process EAs and EISs for all regulations, procedures and other issuances making or amending program policy related to actions which do not qualify for CATEXs. Under the FEMA Directive, this responsibility falls under the Regional Administrators to prepare an EA (to be sent to the Environmental Officer and the Office of Chief Counsel), or EIS for each action not categorically excluded from Part 10 and falling within their respective jurisdictions. These duties appear generally under section VI.C, and more specifically under section VI.C.2.viii, of the FEMA Directive.

    Paragraph (c)(3) requires the Heads of the Offices, Directorates, and Administrations of FEMA to integrate environmental considerations into their decision making process. This responsibility appears in section VI.B.1.i of the FEMA Directive, which mirrors the language of paragraph (c)(3) and adds the requirement that the integration occur early in the decision making process.

    Paragraph (c)(4) requires the Heads of the Offices, Directorates, and Administrations of FEMA to ensure that regulations, procedures and other issuances making or amending program policy are reviewed for consistency with the requirements of Part 10. As stated above, section VI.B.1.ii of the FEMA Directive requires these entities to incorporate EHP review processes into development of regulations, procedures, and other policies for compliance with EHP requirements.

    Paragraph (c)(5) requires the Heads of the Offices, Directorates, and Administrations of FEMA to designate a single point of contact for matters pertaining to this part. The FEMA Directive, in section VI.L, designates this single point of contact as the EHP Program Coordinator, who serves as a technical EHP resource for a specific program office.

    Paragraph (c)(6) requires the Heads of the Offices, Directorates, and Administrations of FEMA to provide applicants for FEMA assistance with technical assistance regarding FEMA's environmental review process. The FEMA Directive captures this duty in section VI.B.4.iv.d which stipulates that the Offices, Programs, and Directorates of FEMA must assist applicants or eligible entities in identifying the EHP requirements triggered by their proposed projects and the potential EHP mitigation measures that may affect project design. The FEMA Directive also lists this as a duty of the Regional Environmental Officer in section VI.H.4.iii.e, which states that the Regional Environmental Officer shall provide technical assistance and guidance to applicants regarding EHP review processes.

    The responsibilities of the Office of Chief Counsel, which are in listed paragraph (d) of § 10.5, appear in section VI.K of the FEMA Directive. Paragraph (d)(1) states that the Office of Chief Counsel shall provide advice and assistance concerning the requirements of Part 10. The list of specific duties in section VI.K of the FEMA Directive all fall under this requirement to provide advice and assistance regarding compliance with NEPA. Specifically, section VI.K.2.v requires the Office of Chief Counsel to provide guidance to the Director of OEHP, FPO, EO, EHP Program Coordinators, the Heads of Offices, Programs, and Directorates, and others as appropriate to assist FEMA in maintaining EHP compliance.

    Paragraph (d)(2) requires the Office of Chief Counsel to review all proposed changes or additions to the list of CATEXs. The FEMA Directive includes this as a primary responsibility of the Environmental Officer with support from the Office of Chief Counsel (section VI.G.1.i and VI.K.1.iv).

    Paragraph (d)(3) requires the Office of Chief Counsel to review all findings of no significant impact, and paragraph (d)(4) requires the Office of Chief Counsel to review all proposed draft and final EISs. These duties fall under section VI.K.2.iv of the FEMA Directive, which requires the Office of Chief Counsel to provide legal sufficiency reviews on EHP analyses and documents. These analyses and documents can include findings of no significant impact and proposed draft and final EISs.

    F. 44 CFR 10.6 Making or Amending Policy

    Section 10.6 states that for all regulations, procedures, or other issuances making or amending policy, the head of the FEMA office or administration establishing such policy shall be responsible for application of Part 10 to that action. This responsibility continues to be that of the Heads of Offices, Programs, and Directorates under the FEMA Directive (section VI.B.2.i). As noted above, § 10.5(b)(8) requires the Environmental Officer to comply with the requirements of Part 10 when the FEMA Administrator promulgates regulations, procedures or other issuances making or amending Agency policy. Under the FEMA Directive, the Director of OEHP retains this duty generally to follow the requirements of the Agency's NEPA procedures for any Agency-wide action. The FEMA Directive states that it is the policy of FEMA to comply with all EHP Requirements, including all applicable laws, regulations, and executive orders, and it is the responsibility of the Heads of Offices, Programs, and Directorates with support from the Director of OEHP to comply with the Agency's policy (section VI.B.2.i and VI.E.2).

    G. 44 CFR 10.7 Planning Early Planning

    Paragraph (a) of § 10.7 states that the Regional Administrator shall integrate the NEPA process with other planning at the earliest possible time to ensure that planning decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. The FEMA Directive mirrors this language in its list of Regional Administrator responsibilities in section VI.C.1.i. More generally, the FEMA Instruction in section 1.5.B.3.a states that it is the policy of FEMA to conduct NEPA and other EHP reviews early in the decision making process and before making a decision that adversely affects natural or cultural resources or limits the choices of alternatives to satisfy an Agency objective. Other requirements to integrate EHP review early in the process appear throughout the FEMA Directive and Instruction; for example, section 1.5.B.3.f of the Instruction states that it is the policy of FEMA to clearly convey EHP requirements, expectations, timelines, and information needs to applicants as early in the project lifecycle as possible, and section VI.B.1.i of the Directive states that it is the responsibility of the Heads of Offices, Programs, and Directorates in FEMA to integrate EHP considerations early into their decision making. In addition, the FEMA Instruction in section 3.1 addresses steps for applying NEPA early in the decision-making process.

    Lead Agency

    Paragraph (b) of § 10.7 states that to determine the lead agency for policy making in which more than one FEMA office or administration is involved or any action in which another Federal agency is involved, FEMA offices and administrations shall apply criteria defined in § 1501.5 of the CEQ regulation,23 and if there is disagreement, the FEMA offices and/or administrations shall forward a request for lead agency determination to the Environmental Officer. The regulation states that the Environmental Officer will determine lead agency responsibility among FEMA offices and administration, and in those cases involving a FEMA office or administration and another Federal agency, the Environmental Officer will attempt to resolve the differences.24 Finally, the regulation states that if unsuccessful, the Environmental Officer will file the request with CEQ for determination.25

    23 40 CFR 1501.5 addresses when a lead agency is required, the process for determining a lead agency, and the responsibilities of the lead agency.

    24 44 CFR 10.7(b)(1) & (2).

    25 44 CFR 10.7(b)(2).

    The FEMA Directive, at section VI.G.2.iv, assigns the Environmental Officer the responsibility of assigning lead agency responsibility when more than one FEMA office or administration is involved in the preparation of environmental documentation. The FEMA Instruction more fully addresses “Lead and Cooperating Agencies,” including the involvement of other Federal agencies, in section 3.3. The DHS Instruction, section V.F, provides the overarching general requirements for “Cooperating and Joint Lead Agency Relationships.” As FEMA is a component of DHS, DHS acts as the liaison with CEQ; if the Environmental Officer is unable to resolve any differences with another Federal agency, the Environmental Officer would raise it to DHS which in turn may liaise with CEQ on the matter.

    Technical Assistance to Applicants

    Paragraph (c) of § 10.7 addresses the requirements of § 1501.2(d) of the CEQ regulations which require agencies to provide for early involvement in action which, while planned by private applicants or other non-Federal entities, require some form of Federal approval. The FEMA Instruction addresses technical assistance in section 2.2.B.

    Paragraph (c)(1)(i) states that the heads of the FEMA offices and administration shall prepare where practicable, generic guidelines describing the scope and level of environmental information required from applicants as a basis for evaluating their proposed actions, and make those guidelines available upon request. Section 2.2.B.3 of the FEMA Instruction discusses program responsibilities in providing guidance to applicants for collection of information for EHP review.

    Paragraph (c)(1)(ii) requires the Regional Administrator to provide the guidance on a project-by-project basis to applicants seeking assistance from FEMA. Section 2.2 of the FEMA Instruction describes in detail how Programs and EHP staff will provide guidance to all applicants whenever there is a proposed action.

    Paragraph (c)(1)(iii) states that upon receipt of an application for agency approval, or notification that an application will be filed, the Regional Administrator shall consult as required with other appropriate parties to initiate and coordinate the necessary environmental analyses. Section 2.2.B.5 of the FEMA Instruction mirrors this language.

    Paragraph (c)(2) lists the responsibilities of applicants and other non-Federal entities to facilitate the requirements of § 1501.2(d) of the CEQ regulations. The FEMA Directive and Instruction apply to FEMA, not directly to applicants or other non-Federal entities. As the EHP procedures will now appear in guidance documents (the FEMA Directive and Instruction), FEMA is not including direct requirements on applicants in those documents. However, the guidance does require FEMA to provide the same information to applicants as is included in paragraph (c)(2) of § 10.7 (e.g., information regarding studies and surveys the applicant may conduct, when to submit applications, and the process for consulting with Federal, regional, State, and local agencies).

    H. 44 CFR 10.8 Determination of Requirement for Environmental Review

    The introduction to § 10.8 addresses the first step in applying the NEPA process, namely, the determination of whether to prepare an EA or an EIS. The introduction to § 10.8 states that early determination will help ensure that necessary environmental documentation is prepared and integrated into the decision making process. It also states that EISs will be prepared for all major Agency actions significantly affecting the quality of the human environment. Paragraph (a) states that in determining whether to prepare an EIS, the Regional Administrator will first determine whether the proposal is one which normally requires an EIS, or normally does not require either an EIS or an EA (CATEX).

    Sections 3.1 and 3.2 of the FEMA Instruction address NEPA implementing procedures for FEMA and comprehensively address the elements in the introduction and paragraph (a) of § 10.8. Specifically, section 3.1 of the FEMA Instruction addresses the application of NEPA early in the FEMA decision making process. Section 3.2 of the FEMA Instruction explains the process of determining the appropriate level of NEPA review, as part of a process referred to as “scoping,” and also covers the process of determining whether a statutory exclusion or CATEX applies. Section 3.2.B explains the process for determining the significance of a proposed action. Section 3.2.B.1 lists typical classes of actions that require an EA, and sections 3.2.B.2 list typical classes of actions that require an EIS.

    1. 10.8(b): Actions That Normally Require an EIS

    Paragraph (b) of § 10.8 addresses actions that normally require an EIS. Paragraph (b)(1) states that in some cases, it will be readily apparent that a proposed action will have significant impact on the environment, in which case, the Regional Administrator will begin the process of preparing an EIS. While there is not an exact correspondence to this provision in the FEMA Directive or Instruction, the procedures set out in the FEMA Instruction at section 3.2.B will capture any actions that seem likely, without the need for in-depth analysis, to have significant impact on the environment.

    Paragraph (b)(2) sets out criteria for determining those actions that normally do require an EIS: (i) An action that will result in an extensive change in land use or the commitment of a large amount of land, (ii) an action that will result in a land use change which is incompatible with the existing or planned land use of the surrounding area, (iii) an action where many people will be affected, (iv) an action where the environmental impact of the project is likely to be controversial, (v) an action that will, in large measure, affect wildlife populations and their habitats, important natural resources, floodplains, wetlands, estuaries, beaches, dunes, unstable soils, steep slopes, aquifer recharge areas, or delicate or rare ecosystems, including endangered species; (vi) an action that will result in a major adverse impact upon air or water quality; (vii) an action that will adversely affect a property listed on the National Register of Historic Places; (viii) an action that is one of several actions underway or planned for an area and the cumulative impact of these projects is considered significant; (ix) an action that holds potential for threat or hazard to the public; and (x) an action that is similar to previous actions that were determined to require an EIS. The FEMA Instruction includes an updated list of these elements in section 3.2.B.2. The list in section 3.2.B.2 includes an additional element to reflect that an EIS may be required for the creation, modifications to the implementation, or reformation of a nationwide FEMA program, with known or potentially significant impacts to the environment. FEMA also removed elements from the list that are no longer necessary to include, in conformance with the DHS Directive and Instruction.

    Paragraph (b)(3) of § 10.8 states that in any case involving an action that normally does not require an EIS, the Regional Administrator may prepare an EA to determine if an EIS is required. There is no direct corollary to this provision in the FEMA Directive or Instruction; however, under section 3.2.B.1 of the FEMA Instruction, the Regional Environmental Officer or other FEMA official with EHP Approval Authority may prepare an EA as part of the process of determining the significance of an action.

    2. 10.8(c): Statutory Exclusions

    Paragraph (c) of § 10.8 lists the actions that are statutorily excluded from NEPA by section 316 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act 26 (Stafford Act); these actions include action taken or assistance provided under sections 402,27 403,28 407,29 or 502 30 of the Stafford Act, and action taken or assistance provided under section 406 31 of the Stafford Act that has the effect of restoring facilities substantially as they existed before a major disaster or emergency.32 Neither the DHS Directive and Instruction nor the FEMA Directive and Instruction contain these statutory exclusions. The appearance of the exclusions in statute (at 42 U.S.C. 5159) precludes the necessity of listing them in guidance. The exclusions still apply to actions that fall under them, but FEMA is no longer listing these exclusions in either regulation or guidance.

    26 42 U.S.C. 5121-5207.

    27 42 U.S.C. 5170a, General Federal assistance FEMA may provide under a Presidential major disaster declaration.

    28 42 U.S.C. 5170b, Essential assistance (often referred to as “emergency protective measures”) FEMA may provide under a Presidential major disaster declaration.

    29 42 U.S.C. 5173, Assistance FEMA may provide for debris removal.

    30 42 U.S.C. 5192, Federal emergency assistance FEMA may provide under a Presidential emergency declaration.

    31 42 U.S.C. 5172, Assistance FEMA may provide for the repair, restoration, and replacement of damaged facilities.

    32 See 42 U.S.C. 5159.

    3. 10.8(d): CATEXs

    The introduction to paragraph (d) of § 10.8 reiterates CEQ regulation 40 CFR 1508.4 which provides for the categorical exclusion of actions that do not individually or cumulatively have a significant impact on the human environment and for which, therefore, neither an EA nor EIS is required. The DHS Instruction at section V.B.1 reiterates the CEQ regulation. As described more fully below, the DHS Instruction in Appendix A includes a list of all DHS CATEXs, including FEMA's CATEXs.

    10.8(d)(1): CATEXs: Criteria

    Paragraph (d)(1) of § 10.8 addresses the criteria FEMA uses for determining those categories of actions that normally do not require either an EA or EIS, including actions that have (i) minimal or no effect on environmental quality, (ii) no significant change to existing environmental conditions, and (iii) no significant cumulative environmental impact. There is no direct correlation of paragraph (d)(1) to the DHS Directive or Instruction; however, section V.B of the DHS Instruction details the DHS process for adding to, revising, or deleting items on the DHS list of CATEXs. Under section V.B.2 of the DHS Instruction, a proposed action must meet three conditions in order to be categorically excluded: (1) It must clearly fit into a CATEX category listed in Appendix A, (2) it is not a piece of a larger action, and (3) no extraordinary circumstances exist. Extraordinary circumstances are discussed more fully below.

    10.8(d)(2): CATEXs: List of Exclusion Categories

    Paragraph (d)(2) of § 10.8 lists FEMA's CATEXs. For the most part, the list is unchanged in the DHS Instruction. The DHS Instruction lists the CATEXs that apply to the entire Department in sections A through G, and N of Appendix A.33 It lists the CATEXs that apply only to FEMA in section M of Appendix A. The CATEXs that are listed in paragraph (d)(2), along with any differences between (d)(2) and the DHS Instruction, are noted as follows:

    33 Each section covers specific activities, as follows: Section A, Administrative and Regulatory Activities; Section B, Operational Activities; Section C, Real Estate Activities; Section D, Repair and Maintenance Activities; Section E, Construction, Installation, and Demolition Activities; Section F, Hazardous/Radioactive Materials Management and Operations; Section G, Training and Exercises; Section N, Federal Assistance Activities. CATEXs are numbered within each section; for example, A1, A2, A3; B1, B2, B3.

    44 CFR 10.8(d)(2)(i): Administrative actions such as personnel actions, travel, or procurement of supplies in support of normal day-to-day activities and disaster related activities. The DHS Instruction covers administrative actions generally in section A of Appendix A. It covers personnel actions and travel in CATEX A1, and it covers procurement in CATEX A6.

    44 CFR 10.8(d)(2)(ii): Preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for CATEXs. There is no direct correlation to this CATEX in the DHS Instruction. However, the DHS Instruction does include a CATEX (A3) for these documents if they are (1) strictly of an administrative or procedural nature, (2) they implement, without substantive change, statutory or regulatory requirements, (3) they implement, without substantive change, procedures, manuals, and other guidance documents, (4) they interpret or amend an existing regulation without changing its environmental effect, (5) they provide technical guidance on safety or security matters, or, (6) they provide guidance for the preparation of security plans.

    44 CFR 10.8(d)(2)(iii): Studies that involve no commitment of resources other than manpower and associated funding. There is no direct correlation to this CATEX in the DHS Instruction. However, the DHS Instruction does include a CATEX (A4) for information gathering, data analysis and processing, information dissemination, review, interpretation, and development of documents, including studies, reports, proposals, analyses, literature reviews; computer modeling; and non-intrusive intelligence gathering activities.

    44 CFR 10.8(d)(2)(iv): Inspection and monitoring activities, granting of variances, and actions to enforce Federal, State, or local codes, standards, or regulations. There is no direct correlation to this CATEX in the DHS Instruction. The DHS Instruction does not include a CATEX for the granting of variances. It does include several CATEXs that cover inspection, monitoring, and enforcement activities as follows: CATEX C10, Real property inspections to ensure compliance with deed or easement restrictions; CATEX M1, with respect to FEMA's administration of the National Flood Insurance Program, actions associated with inspections and monitoring, enforcement of Federal, State, Tribal, or local floodplain management codes, standards, or regulations, except for the suspension of communities from the National Flood Insurance Program; CATEX M11, information and data gathering and reporting in support of emergency and disaster response and recovery activities, including ground and aerial reconnaissance and structure inspection; and CATEX N1, with respect to administrative actions associated with grants management, conducting inspections, financial audits, and monitoring activities.

    44 CFR 10.8(d)(2)(v): Training activities and both training and operational exercises utilizing existing facilities in accordance with established procedures and land use designations. Section G of Appendix A of the DHS Instruction covers training and exercises. In particular, it covers in CATEX G1 training of homeland security personnel, including international, Tribal, State, and local agency representatives using existing facilities where the training occurs in accordance with applicable permits and other requirements for the protection of the environment. In addition, CATEX G2 covers projects, grants, cooperative agreements, contracts, or activities to design, develop, and conduct national, State, local, or international exercises to test the readiness of the nation to prevent or respond to a terrorist attack or a natural or manmade disaster and where conducted in accordance with existing facility or land use designations.

    44 CFR 10.8(d)(2)(vi): Procurement of goods and services for support of day-to-day and emergency operational activities, and the temporary storage of goods other than hazardous materials, so long as storage occurs on previously disturbed land or in existing facilities. CATEX A6 of the DHS Instruction covers procurement of non-hazardous goods and services, and storage, recycling, and disposal of non-hazardous materials and wastes, that complies with applicable requirements and is in support of routine administrative, operational, or maintenance activities. Storage activities must occur on previously disturbed land or in existing facilities. Examples include but are not limited to: Office supplies, equipment, mobile assets, utility services, chemicals and low level radio nuclides for laboratory use, deployable emergency response supplies and equipment, and waste disposal and contracts for waste disposal in established permitted landfills and facilities.

    44 CFR 10.8(d)(2)(vii): The acquisition of properties and the associated demolition/removal or relocation of structures under any applicable authority when the acquisition is from a willing seller, the buyer coordinated acquisition planning with affected authorities, and the acquired property will be dedicated in perpetuity to uses that are compatible with open space, recreational, or wetland practices. CATEX N3 of the DHS Instruction covers Federal assistance for the acquisition of properties and associated demolition/removal when the acquisition is from a willing seller and land is deed restricted to open space, recreational, wildlife habitat, or wetland uses in perpetuity. CATEX N6 covers Federal assistance for the relocation of structures and facilities, including the realignment of linear facilities that are part of a bigger system, when they do not involve ground disturbance of more than one acre. This category does not apply to the following: Actions that involve hardening or armoring of stream banks, unless they use stream or stream bank bioengineering techniques that improve fish passage or habitat; realignment actions affecting a regulatory floodway if they result in any increase in flood levels during the base flood discharge; or actions occurring seaward of the limit of moderate wave action (or V zone when the limit of moderate wave action has not been identified).

    44 CFR 10.8(d)(2)(viii): Acquisition or lease of existing facilities where planned uses conform to past use or local land use requirements. CATEX C1 of the DHS Instruction covers acquisition of an interest in real property that is not within or adjacent to environmentally sensitive areas, including interests less than a fee simple, by purchase, lease, assignment, easement, condemnation, or donation, which does not result in a change in the functional use of the property.

    44 CFR 10.8(d)(2)(ix): Acquisition, installation, or operation of utility and communication systems that use existing distribution systems or facilities, or currently used infrastructure rights-of-way. CATEX E1 of the DHS Instruction covers construction, installation, operation, maintenance, and removal of utility and communication systems (such as mobile antennas, data processing cable, and similar electronic equipment) that use existing rights-of-way, easements, utility distribution systems, and/or facilities. This is limited to activities with towers where the resulting total height does not exceed 200 feet and where the Federal Communications Commission would not require an EA or EIS for the acquisition, installation, operation or maintenance.

    44 CFR 10.8(d)(2)(x): Routine maintenance, repair, and grounds-keeping activities at FEMA facilities. CATEX D3 in the DHS Instruction covers repair and maintenance of Department 34 -managed buildings, roads, airfields, grounds, equipment, and other facilities which do not result in a change in functional use or an impact on a historically significant element or setting (e.g., replacing a roof, painting a building, resurfacing a road or runway, pest control activities, restoration of trails and firebreaks, culvert maintenance, grounds maintenance, existing security systems, and maintenance of waterfront facilities that does not require individual regulatory permits).

    34 The DHS Instruction in Section II defines “Department” to include FEMA.

    44 CFR 10.8(d)(2)(xi): Planting of indigenous vegetation. CATEX N12 of the DHS Instruction covers Federal assistance for planting of indigenous vegetation.

    44 CFR 10.8(d)(2)(xii): Demolition of structures and other improvements or disposal of uncontaminated structures and other improvements to permitted off-site locations, or both. CATEX E4 of the DHS Instruction covers the removal or demolition, along with subsequent disposal of debris to permitted or authorized off-site locations, of non-historic buildings, structures, other improvements, and/or equipment in compliance with applicable environmental and safety requirements.

    44 CFR 10.8(d)(2)(xiii): Physical relocation of individual structures where FEMA has no involvement in the relocation site selection or development. Although the DHS Instruction does not include a CATEX exactly on point with this provision, CATEX N6, which covers Federal assistance for the relocation of structures and facilities, including the realignment of linear facilities that are part of a bigger system, when they do not involve ground disturbance of more than one acre, addresses it most closely.

    44 CFR 10.8(d)(2)(xiv): Granting of community-wide exceptions for floodproofed residential basements meeting the requirements of 44 CFR 60.6(c) under the National Flood Insurance Program. This CATEX is not discussed in the FEMA Directive or Instruction because since the addition of this CATEX, the National Flood Insurance Program has concluded it is unnecessary, as work on basements is not considered a major Federal action subject to NEPA review.

    44 CFR 10.8(d)(2)(xv): Repair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and standards, or replacement of any facility in a manner that substantially conforms to the preexisting design, function, and location. This CATEX is covered in part by the statutory exclusion at 42 U.S.C. 5159, and in part by CATEX N7 of the DHS Instruction which covers Federal assistance for the reconstruction, elevation, retrofitting, upgrading to current codes and standards, and improvements of pre-existing facilities in existing developed areas with substantially completed infrastructure, when the immediate project area has already been disturbed, and when those actions do not alter basic functions, do not exceed capacity of other system components, or modify intended land use. CATEX N7 also states that this category does not include actions within or affecting streams or stream banks or actions seaward of the limit of moderate wave action (or V zone when the limit of moderate wave action has not been identified).

    44 CFR 10.8(d)(2)(xvi): Improvements to existing facilities and the construction of small scale hazard mitigation measures in existing developed areas with substantially completed infrastructure, when the immediate project area has already been disturbed, and when those actions do not alter basic functions, do not exceed capacity of other system components, or modify intended land use, provided the operation of the completed project will not, of itself, have an adverse effect on the quality of the human environment. This FEMA CATEX, similar to the FEMA CATEX at 44 CFR 10.8(d)(2)(xv), is covered by CATEX N7 of the DHS Instruction.

    44 CFR 10.8(d)(2)(xvii): Actions conducted within enclosed facilities where all airborne emissions, waterborne effluent, external radiation levels, outdoor noise, and solid and bulk waste disposal practices comply with existing Federal, State, and local laws and regulations. CATEX B1 of the DHS Instruction, while slightly different than the FEMA CATEX, covers actions within enclosed facilities; specifically, CATEX B1 covers research, development, testing, and evaluation activities, or laboratory operations conducted within existing enclosed facilities consistent with previously established safety levels and in compliance with applicable Federal, Tribal, State, and local requirements to protect the environment when it will result in no, or de minimus, change in the use of the facility. CATEX B1 requires an EA (and possibly an EIS) if the operation will substantially increase the extent of potential environmental impacts or is controversial.

    44 CFR 10.8(d)(2)(xviii): Planning and administrative activities in support of emergency and disaster response and recovery. Paragraphs (A) through (E) of § 10.8(d)(2)(X)(viii) cover these activities as follows:

    44 CFR 10.8(d)(2)(xviii)(A): Activation of the Emergency Support Team and convening of the Catastrophic Disaster Response Group at FEMA headquarters. CATEX M10 of the DHS Instruction covers activation of response and recovery frameworks and operations (e.g., National Response Framework, National Disaster Recovery Framework, National Response Coordination Center, Regional Response Coordination Center, Emergency Response Teams, Incident Management Assistance Teams, Emergency Support Functions, Recovery Support Functions).

    44 CFR 10.8(d)(2)(xviii)(B): Activation of the Regional Operations Center and deployment of the Emergency Response Team, in whole or in part. This FEMA CATEX, similar to the FEMA CATEX at 44 CFR 10.8(d)(2)(xviii)(A), is covered by CATEX M10 of the DHS Instruction.

    44 CFR 10.8(d)(2)(xviii)(C): Deployment of Urban Search and Rescue teams. CATEX M3 of the DHS Instruction covers Urban Search and Rescue (USR) activities, including deployment of USR teams.

    44 CFR 10.8(d)(2)(xviii)(D): Situation Assessment including ground and aerial reconnaissance. CATEX M11 of the DHS Instruction covers information and data gathering and reporting in support of emergency and disaster response and recovery activities, including ground and aerial reconnaissance and structure inspection.

    44 CFR 10.8(d)(2)(xviii)(E): Information and data gathering and reporting efforts in support of emergency and disaster response and recovery and hazard mitigation. This FEMA CATEX, similar to the FEMA CATEX at 44 CFR 10.8(d)(2)(xviii)(D), is covered by CATEX M11 of the DHS Instruction.

    44 CFR 10.8(d)(2)(xix): Emergency and disaster response, recovery and hazard mitigation activities under the Stafford Act. Paragraphs (A) through (O) of § 10.8(d)(2)(xix) cover these activities as follows:

    44 CFR 10.8(d)(2)(xix)(A): General Federal Assistance (section 402 of the Stafford Act). This provision is statutorily excluded from NEPA by 42 U.S.C. 5159. The DHS Instruction does not include statutory exclusions in its list of CATEXs.

    44 CFR 10.8(d)(2)(xix)(B): Essential Assistance (section 403 of the Stafford Act). This provision is statutorily excluded from NEPA by 42 U.S.C. 5159. The DHS Instruction does not include statutory exclusions in its list of CATEXs.

    44 CFR 10.8(d)(2)(xix)(C): Debris Removal (section 407 of the Stafford Act). This provision is statutorily excluded from NEPA by 42 U.S.C. 5159. The DHS Instruction does not include statutory exclusions in its list of CATEXs.

    44 CFR 10.8(d)(2)(xix)(D): Temporary Housing (section 408 of the Stafford Act), except locating multiple mobile homes or other readily fabricated dwellings on sites, other than private residences, not previously used for such purposes. CATEX N14(b) of the DHS Instruction generally covers the Individuals and Households Program (IHP) (authorized by section 408 of the Stafford Act), which includes temporary housing. However, CATEX N14(b) excludes any grant that will be used for purchasing mobile homes or other readily fabricated dwellings.

    44 CFR 10.8(d)(2)(xix)(E) Unemployment Assistance (section 410 of the Stafford Act). CATEX N14(a) of the DHS Instruction covers unemployment assistance under section 410 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(F): Individual and Family Grant Program (section 411 of the Stafford Act), except for grants that will be used for restoring, repairing or building private bridges, or purchasing mobile homes or other readily fabricated dwellings. The Individual and Family Grant Program is a defunct program (the IHP superseded it) and the DHS Instruction does not include it in its list of CATEXs.

    44 CFR 10.8(d)(2)(xix)(G): Food Coupons and Distribution (section 412 of the Stafford Act). CATEX N14(c) of the DHS Instruction covers food coupons and distribution under section 412 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(H): Food Commodities (section 413 of the Stafford Act). CATEX N14(d) of the DHS Instruction covers food commodities under section 413 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(I): Legal Services (section 415 of the Stafford Act). CATEX N14(e) of the DHS Instruction covers legal services under section 415 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(J): Crisis Counseling Assistance and Training (section 416 of the Stafford Act). CATEX N14(f) of the DHS Instruction covers crisis counseling and training under section 416 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(K): Community Disaster Loans (section 417 of the Stafford Act). CATEX N14(g) of the DHS Instruction covers community disaster loans under section 417 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(L): Emergency Communications (section 418 of the Stafford Act). CATEX N14(h) of the DHS Instruction covers emergency communications under section 418 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(M): Emergency Public Transportation (section 419 of the Stafford Act). CATEX N14(i) of the DHS Instruction covers emergency public transportation under section 419 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(N): Fire Management Assistance Grants (section 420 of the Stafford Act). CATEX N14(j) of the DHS Instruction covers fire management assistance grants under section 420 of the Stafford Act.

    44 CFR 10.8(d)(2)(xix)(O): Federal Emergency Assistance (section 502 of the Stafford Act). This provision is statutorily excluded from NEPA by 42 U.S.C. 5159. The DHS Instruction does not include statutory exclusions in its list of CATEXs.

    44 CFR 10.8(d)(3): CATEXs: Extraordinary circumstances.

    Paragraph (d)(3) of § 10.8 covers extraordinary circumstances. It requires an EA to be prepared if extraordinary circumstances exist such that an action that is categorically excluded from NEPA may have a significant adverse environmental impact. Similarly, under the DHS Instruction at section V.B.2.c, the presence of an extraordinary circumstance precludes the application of a CATEX. Paragraphs (i) through (x) of § 10.8(d)(3) list the extraordinary circumstances that may have a significant environmental impact. The extraordinary circumstances listed in paragraphs (d)(3)(i) through (x), along with any differences between (d)(3)(i) through (x) and the DHS Instruction, are as follows:

    44 CFR 10.8(d)(3)(i) Greater scope or size than normally experienced for a particular category of action. The DHS Instruction at section V.B.2.c.viii correlates almost exactly to this provision, but adds the word “significantly” before “greater scope or size.”

    44 CFR 10.8(d)(3)(ii) Actions with a high level of public controversy. The DHS Instruction at section V.B.2.c.vi covers actions likely to be controversial. Specifically, it covers actions where the effect on the quality of the human environment is likely to be highly controversial in terms of scientific validity, likely to be highly uncertain, or likely to involve unique or unknown environmental risks, including effects that may result from the use of new technology or unproven technology. However, it states that controversy over, including public opposition to, a proposed action absent any demonstrable potential for significant environmental impacts does not itself constitute an extraordinary circumstance.

    44 CFR 10.8(d)(3)(iii) Potential for degradation, even though slight, of already existing poor environmental conditions. The DHS Instruction in section V.B.2.c.ix covers actions that have the potential for significant degradation of already existing poor environmental conditions, as well as the initiation of a potentially significant environmental degrading influence, activity, or effect in areas not already significantly modified from their natural condition.

    44 CFR 10.8(d)(3)(iv) Employment of unproven technology with potential adverse effects or actions involving unique or unknown environmental risks. As noted above, the DHS Instruction at section V.B.2.c.vi covers effects that may result from the use of unproven technology likely to involve unique or unknown environmental risks.

    44 CFR 10.8(d)(3)(v) Presence of endangered or threatened species or their critical habitat, or archaeological, cultural, historical, or other protected resources. The DHS Instruction at section V.B.2.c.iii covers actions that may have a potentially significant effect on historic properties (e.g., districts, sites, buildings, structures, or objects) that are listed in or eligible for listing in the National Register of Historic Places, affect traditional cultural properties or sacred sites, or lead to the loss or destruction of a significant scientific, cultural, or historical resource.

    44 CFR 10.8(d)(3)(vi) Presence of hazardous or toxic substances at levels which exceed Federal, State, or local regulations or standards requiring action or attention. The DHS Instruction at section V.B.2.c.v covers a potential or threatened violation of a Federal, State, or local law or requirement imposed to protect the environment, including Federal, Tribal, State, or local requirements to control hazardous or toxic substances.

    44 CFR 10.8(d)(3)(vii) Actions with the potential to affect special status areas adversely or other critical resources such as wetlands, coastal zones, wildlife refuge and wilderness areas, wild and scenic rivers, sole or principal drinking water aquifers. The DHS Instruction at section V.B.2.c.ii covers actions that may have a potentially significant effect on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, Magnuson-Stevens Fishery Conservation and Management Act, or other law protecting a species or habitat. In addition, the DHS Instruction at section V.B.2.c.iv covers actions that may have a potentially significant effect on an environmentally sensitive area.35

    35 The DHS Instruction defines “environmentally sensitive area” as an area designated by law, regulation, or executive order that merits special protection or stewardship because of its value as a natural, historic, or cultural resource. Examples include, but are not limited to: (1) Proposed or designated critical habitat for threatened or endangered species; (2) properties listed or eligible for listing on the National Register of Historic Places; and (3) areas having special designation or recognition such as prime or unique agricultural lands, coastal zones, designated wilderness or wilderness study areas, wild and scenic rivers, 100 year floodplains, wetlands, sole source aquifers, Marine Sanctuaries, National Wildlife Refuges, National Parks, National Monuments, essential fish habitat, etc. (emphasis added).

    44 CFR 10.8(d)(3)(viii) Potential for adverse effects on health or safety. The DHS Instruction at section V.B.2.c.i covers actions that may have a potentially significant effect on public health or safety.

    44 CFR 10.8(d)(3)(ix) Potential to violate a Federal, State, local, or Tribal law or requirement imposed for the protection of the environment. The DHS Instruction at section V.B.2.c.v covers actions that may have a potential or threatened violation of a Federal, State, or local law or requirement imposed to protect the environment.

    44 CFR 10.8(d)(3)(x) Potential for significant cumulative impact when the proposed action is combined with other past, present, and reasonably foreseeable future actions, even though the impacts of the proposed action may not be significant by themselves. The DHS Instruction at section V.B.2.c.x covers actions related to other actions with individually insignificant, but cumulatively significant impacts.

    44 CFR 10.8(d)(4): CATEXs: Documentation.

    Paragraph (d)(4) of § 10.8 requires the Regional Administrator to prepare and maintain an administrative record of each proposal that is determined to be categorically excluded from the preparation of an EA or EIS. The DHS Instruction at section V.B.4 requires a record of environmental consideration whenever a CATEX denoted by an asterisk is applied 36 in order to document that potential impacts to the human environment have been appropriately considered and the determination that the proposed action is either appropriately categorically excluded or must be analyzed further through an EA or EIS process. In addition, the DHS Instruction acknowledges there may be instances where a DHS component may choose to prepare a record of environmental consideration when it is not otherwise required. It is not mandatory, however.

    36 CATEXs denoted by an asterisk include classes of actions that have a higher possibility of involving extraordinary circumstances that may preclude the use of a CATEX. See DHS Instruction section V.B.4.

    44 CFR 10.8(d)(5): CATEXs: Revocation.

    Paragraph (d)(5) of § 10.8 requires the Regional Administrator to revoke a determination of a CATEX and require full environmental review if, subsequent to granting an exclusion, the Regional Administrator determines that due to changes in the proposed action or in light of new findings, the action no longer meets the requirements for a CATEX. Although there is no specific provision directly on point in the new DHS or FEMA Directives or Instructions, the FEMA Instruction in section 2.2.E does require FEMA to communicate to applicants the need to notify FEMA of any changes to the proposed action, alternatives, or project schedule; the FEMA Instruction specifically states that when changes to project plans create substantial changes or significant new circumstances or information relevant to EHP reviews, FEMA will seek assistance from applicants so FEMA can prepare supplemental or additional EHP analyses as required under EHP requirements.

    44 CFR 10.8(d)(6): CATEXs: Changes to the list of exclusion categories.

    Paragraph (d)(6) of § 10.8 requires FEMA to continually review and refine the list of exclusion categories as additional categories are identified and experience is gained in the CATEX process. Paragraph (d)(6) also outlines the internal process for a FEMA entity to recommend additions or changes to the list. The DHS Instruction in section V.B.3 addresses the establishment, deletion, and revision of CATEXs. Under the DHS Instruction, components forward proposals to substantively revise or establish new CATEXs (together with justification) to the Director of SEP for approval. Proposals to substantively revise or establish new CATEXs require an administrative record that meets CEQ standards and are subject to both CEQ review and public comment. SEP reviews such proposals to determine whether the CATEX is appropriate for inclusion in the DHS-wide list or a component-specific list. SEP revises Appendix A, Table 1 to include approved new or substantially revised CATEXs. In addition, components notify SEP of non-substantive revisions to or deletions of component-specific CATEXs so that SEP can amend the table accordingly. Finally, all CATEXs and the list of extraordinary circumstances are reviewed by SEP in consultation with the components at least every 7 years to ensure they are still appropriate, and to identify any changes that may be needed in light of additional experience gained in applying the CATEXs to proposed DHS actions.

    4. 44 CFR 10.8(e): Actions That Normally Require an EA

    Paragraph (e) of § 10.8 requires the Regional Administrator to prepare an EA when a proposal is not one that normally requires an EIS and does not qualify as a CATEX. Similarly, the DHS Instruction in section V.C.2.a states that when a proposed action is not in a category of actions described in an available DHS CATEX and there is not enough information to determine that the proposed action will have significant environmental impacts requiring an EIS, the EA process is used to determine, through environmental impact evaluation and opportunity for public involvement, if the impacts on the quality of the human environment would be significant or not.

    5. 44 CFR 10.8(f): Documentation

    This paragraph 10.8(f) is duplicative of paragraph 10.8(d)(4), which is addressed earlier in this preamble.

    6. 44 CFR 10.8(g): Actions That Normally Require an EA

    This paragraph 10.8(g) is duplicative of paragraph 10.8(e), which is addressed earlier in this preamble.

    I. 44 CFR 10.9 Preparation of EAs. 1. 44 CFR 10.9(a) When To Prepare.

    Paragraph (a) of § 10.9 requires the Regional Administrator to begin preparation of an EA as early as possible after the determination that an assessment is required, and may prepare an assessment at any time to assist planning and decision making. The DHS Instruction covers preparation of an EA in section V.C. It does not specifically state that an EA should be prepared as early as possible, but it does state that a component can decide to prepare an EA as a best practice planning tool to inform decision-makers on the environmental impacts of its actions.

    2. 44 CFR 10.9(b) Content and Format

    Paragraph (b) of § 10.9 covers the content and format of an EA, and requires the EA to include the purpose and need for the proposed action, a description of the proposed action, alternatives considered, environmental impact of the proposed action and alternatives, listing of agencies and persons consulted, and a conclusion of whether to prepare an EIS. The DHS Instruction includes the same requirements in section V.C.8.

    3. 44 CFR 10.9(c) Public Participation

    Paragraph (c) of § 10.9 requires the Regional Administrator to involve environmental agencies, applicants, and the public, to the extent practicable, in preparing EAs. In determining “to the extent practicable,” it requires the Regional Administrator to consider the magnitude of the proposal, likelihood of public interest, the need to act quickly, the likelihood of meaningful public comment, national security classification issues, the need for permits, and the statutory authority of the environmental agency regarding the proposal.

    The DHS Instruction at section V.C.7 covers the public involvement process involving an EA. It states that public involvement requirements can be met during scoping at the start of an evaluation and/or by distributing a draft EA and draft finding of no significant impact for public review. It states that where a good faith effort has been used to seek out and involve the public in the drafting of an EA and no significant impacts (including potential for an impact on the quality of the human environment that is highly controversial) have been identified, a component can complete an EA and finding of no significant impact without circulating a draft document for public review. It states that a good faith effort includes consideration of the extent of other related public involvement efforts, as well as consideration of the following factors found in section IV.G of the DHS Instruction:

    • The size and type of the proposed action.

    • Whether the proposed action is of international, national, regional, or local interest.

    • The potential environmental impacts of the proposed action.

    • Extent of previous environmental analysis for the proposed action and/or the geographical location where the action would occur.

    • Extent of anticipated controversy over the potential environmental effects of the proposed action, based on DHS experience with similar proposed actions.

    • Urgency of the proposed action.

    • National security classification of the proposed action.

    • The presence of Tribal, minority, or low-income populations that may be impacted by the proposed action.

    • Other laws and requirements to protect the environment that may require public review; for example, a determination of conformity with a State air quality implementation plan may require public review.

    In addition, the FEMA Instruction at section 3.4.D.3 addresses public involvement, stating that FEMA will involve environmental agencies, applicants, tribes, and the public, to the extent practicable, in preparing EAs and EISs. It states that in determining “to the extent practicable” and appropriate public involvement methods and timing, FEMA will consider the following (which mirror paragraph (c) of § 10.9):

    • Magnitude of the proposal;

    • Likelihood of public interest;

    • Need to act quickly;

    • Likelihood of meaningful public comment;

    • National security classification issues;

    • Need for permits; and

    • Statutory authority of environmental agency regarding the proposal.

    4. 44 CFR 10.9(d) When To Prepare an EIS

    Paragraph (d) of § 10.9 requires the Regional Administrator to prepare an EIS for all major Agency actions significantly affecting the quality of the human environment. It states that the test of what is a “significant” enough impact to require an EIS is found in the CEQ regulations at 40 CFR 1508.27 (defining “significantly”). Similarly, the DHS Instruction at section V.D.1 states that an EIS is prepared for major Federal actions significantly affecting the quality of the human environment (see 40 CFR part 1502, criteria for an EIS), and in section V.D.2 states that a component prepares an EIS when its proposed action and/or any reasonable alternative(s) would have significant environmental effects, including actions where an EA concluded that there would be significant impacts, and therefore preparation of an EIS was necessary. In addition, the FEMA Instruction at section 3.2.B.2 lists the types of actions likely to be significant and thus may trigger the preparation of an EIS.

    5. 44 CFR 10.9(e) Finding of No Significant Impact

    Paragraph (e) of § 10.9 states that if the Regional Administrator determines on the basis of the EA not to prepare an EIS, the Regional Administrator shall prepare a finding of no significant impact in accordance with 40 CFR 1501.4(e) of the CEQ regulations. It states that the assessment and the finding shall be submitted to the Environmental Officer and the Office of Chief Counsel for approval, and if such approval is obtained, the Regional Administrator shall then make the finding of no significant impact available to the public as specified in 40 CFR 1506.6 of the CEQ regulations. Finally, paragraph (e) states that a finding of no significant impact is not required when the decision not to prepare an EIS is based on a CATEX.

    The DHS Instruction in section V.C.9 states that a component's final determination on the environmental impacts of a proposed action is required upon the completion of an EA. It states that the EA process concludes with a finding of no significant impact when (1) the evaluation of the impacts of the proposed action on the human environment indicates that the environmental effects would not be significant, or (2) the component commits to including measures in the proposed action that mitigate impacts to a level of insignificance. The DHS Instruction states that a finding of no significant impact is a separate document from an EA, but may be integrated into any other appropriate decision-making document that can be made publicly available, provided it includes the minimum content requirements in Section V.C.10 of the DHS Instruction.

    The FEMA Instruction in section 3.2.A.2.b states that upon documenting a CATEX, the NEPA process is complete (implying a finding of no significant impact is not required). Section VII of the FEMA Directive describes procedures, program requirements, and delegation of EHP Approval Authority required to approve findings of no significant impacts.

    6. 44 CFR 10.9(f) Environmental Officer or Office of Chief Counsel Disallowance Paragraph (f) of § 10.9 states that if the Environmental Officer or Office of Chief Counsel disagrees with the finding of no significant impact, the Regional Administrator shall prepare an EIS, and prior to preparation of an EIS, the Regional Administrator shall forward a notice of intent to prepare an EIS to the Environmental Officer, who shall publish such notice in the Federal Register.

    As stated above, section VII of the FEMA Directive addresses program requirements and delegations of EHP Approval Authority for findings of no significant impacts. The dual signatory process outlined in section VII of the FEMA Directive is an updated structure that operates similarly to the structure outlined in 44 CFR part 10. Under the FEMA Directive, the Director of OEHP or delegate must approve a finding of no significant impact, and the Office of Chief Counsel serves in an advisory role. The Environmental Officer or delegate would consult with the Office of Chief Counsel and take under advisement the legal counsel provided.

    7. 44 CFR 10.9(g) EIS Determination of Regional Administrator

    Paragraph (g) of § 10.9 states that the Regional Administrator 37 may decide on his/her own to prepare an EIS, and in such case, the Regional Administrator shall forward a notice of intent to prepare the EIS to the Environmental Officer who shall publish such notice in the Federal Register. EHP responsibilities outlined in the FEMA Directive represent a new structure which operates differently than the structure set out in 44 CFR part 10. Under the new structure, the Regional Administrator would notify the appropriate EHP personnel in his/her region to prepare the notice of intent (FEMA Instruction section 3.2.B.2).

    37 The regulatory text incorrectly refers to “Regional Director”; FEMA updated internal titles by technical amendment in 2009 (74 FR 15328) but overlooked the update for this reference.

    J. 44 CFR 10.10 Preparation of EISs 1. 44 CFR 10.10(a) Scoping

    Paragraph (a) of § 10.10 states that after determination that an EIS will be prepared and publication of the notice of intent, the Regional Administrator will initiate the scoping process in accordance with 40 CFR 1501.7 of the CEQ regulations. The FEMA Instruction in section 3.2.A.1 states that FEMA will determine the range of issues that need to be addressed and the level of documentation required during the scoping process, and as part of the scoping process, FEMA may establish time limits for the NEPA process and hold early scoping meetings to engage stakeholders and the public at large. It states that the FEMA official with the appropriate level of EHP approval authority will lead these scoping efforts.

    2. 44 CFR 10.10(b) Preparation

    Paragraph (b) of § 10.10 states that based on the scoping process, the Regional Administrator will begin preparation of the EIS, and detailed procedures for preparation of the EIS are provided in Part 1502 of the CEQ regulations. The DHS Instruction addresses preparation of the EIS in section V.D and also refers to Part 1502 of the CEQ regulations. The FEMA Instruction discusses EIS preparation in Chapter 3 and includes appropriate references to the DHS Instruction and CEQ regulations.

    3. 44 CFR 10.10(c) Supplemental EISs

    Paragraph (c) of § 10.10 states that the Regional Administrator may at any time supplement a draft or final EIS, and that the Regional Administrator shall prepare a supplement to either a draft or final EIS when required under the criteria set forth in 40 CFR 1502.9(2).38 It states that the Regional Administrator will prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft or final statement and will introduce the supplement into their formal administrative record.

    38 This appears to be a typo, as there is no 40 CFR 1502.9(2). The correct cite is most likely 40 CFR 1502.9(c), which addresses circumstances that would warrant a supplemental EIS and procedures for preparing one.

    The DHS Instruction in section V.D.6 addresses supplemental EISs. It states that a component may prepare a supplemental EIS (SEIS) if there are substantial changes to the proposal that are relevant to environmental concerns or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposal or its impacts, and refers to 40 CFR 1502.9(c)(1). It states that a component may also supplement a draft EIS (DEIS) or Final EIS (FEIS) at any time to further the evaluation presented in the original EIS.

    The DHS Instruction further states that components prepare, circulate, and file a supplement to a DEIS or FEIS in the same manner as any other DEIS or FEIS, except that scoping is optional for an SEIS (referring to 40 CFR 1502.9(c)(4)), and that public notice methods are chosen that are appropriate for reaching persons who may be interested in or affected by the proposal; if an FEIS is supplemented after a record of decision has been completed, the component must complete a new record of decision and publishes a notice of availability of the record of decision and the supplemental information in the Federal Register.

    The FEMA Instruction briefly addresses supplemental analyses at section 3.6.F and refers back to the DHS Instruction at section V.D.6.

    4. 44 CFR 10.10(d) Circulation of EISs

    Paragraph (d) of § 10.10 requires the Regional Administrator to circulate draft and final EISs as prescribed in 40 CFR 1502.19 39 of the CEQ regulations, and that prior to signing off on a draft or final EIS, the Regional Administrator shall obtain the approval of the Environmental Officer and the Office of Chief Counsel. The FEMA Instruction at section 3.5.B.3. requires FEMA to follow 40 CFR 1502.19. As discussed above, the FEMA Directive addresses EHP Approval Authority of FEMA personnel, which reflects a different internal agency approval structure than that outlined in 44 CFR part 10.

    39 40 CFR 1502.19 addresses circulation of the EIS and requires agencies to circulate it to (1) any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved, (2) any appropriate Federal, State or local agency authorized to develop and enforce environmental standards, (3) the applicant, (4) any person, organization, or agency requesting the EIS, and (5) in the case of a final EIS, any person, organization, or agency which submitted substantive comments on the draft.

    K. 44 CFR 10.11 Environmental information

    Section 10.11 states that interested persons may contact the Environmental Officer or the Regional Administrator for information regarding FEMA's compliance with NEPA. The FEMA Directive is intended for internal circulation within FEMA, not as a general reference for the public, so it does not include guidance for the general public. The FEMA Instruction at section 2.2 discusses Program responsibilities for supporting applicants throughout the EHP process including meeting requirements for notification and consultation with affected and interested parties (section 2.2.B.3). In addition, the DHS Directive and Instruction are on the DHS Web site at http://www.dhs.gov/national-environmental-policy-act, and FEMA will post the FEMA Directive and Instruction on the FEMA public Web site at www.fema.gov/media-library/assets/documents/118323. The public may find further information about FEMA's EHP process and requirements at www.fema.gov/office-environmental-planning-and-historic-preservation.

    L. 44 CFR 10.12 Pre-implementation Actions 1. 44 CFR 10.12(a) Decision Making

    Paragraph (a) of § 10.12 requires the Regional Administrator to ensure that decisions are made in accordance with the policies and procedures of NEPA, and that the NEPA process is integrated into the decision making process. The FEMA Directive in section VI.A requires the FEMA Administrator to consider the impacts of decisions on the human environment before actions are taken or decisions are made (VI.A.2.i), to regularly articulate the value of EHP (which includes NEPA) in the FEMA decision making process to managers and staff (VI.A.1.ii), and to fully integrate the EHP requirements into planning and decision-making for all policies, programs, activities, and operations of FEMA (VI.A.1.v).

    Paragraph (a) of § 10.12 also addresses the existence of a variety of FEMA programs, notes that each program will necessarily have different decision making procedures, and notes that review and approval authority may be exercised at various levels. As noted above, the FEMA Directive addresses EHP Approval Authority which can exist at various different FEMA levels (e.g., Heads of Offices, Programs, or Directorates; the Regional Administrators; Federal Coordinating Officers; Regional Environmental Officers), as well as the option for delegation of authority to appropriate personnel.

    Finally, paragraph (a) of § 10.12 lists specific requirements that the Regional Administrator must follow under NEPA, for example, to consider the specific alternatives analyzed in an EIS when evaluating the proposal which is the subject of the EIS. The DHS Directive and Instruction and FEMA Directive and Instruction (section 3.2.C) include the same requirements and do not deviate from those listed in § 10.12, as these requirements are dictated by NEPA and the CEQ regulations.

    2. 44 CFR 10.12(b) Record of Decision

    Paragraph (b) of § 10.12 states that in those cases requiring an EIS, the Regional Administrator at the time of his/her decision, or if appropriate, his/her recommendation to Congress, shall prepare a concise public record of that decision. It states that the record of decision is not intended to be an extensive, detailed document for the purpose of justifying the decision, but rather, it is a concise document that sets forth the decision and describes the alternatives and relevant factors considered as specified in 40 CFR 1505.2. Finally, it states that the record of decision will normally be less than 3 pages in length.

    The DHS Instruction in section V.D.10 addresses the record of decision. It states that when a component decides whether or not to take action on a proposal covered by an EIS, it prepares a record of decision which contains the requirements listed in 40 CFR 1505.2. It states that a record of decision is a separate document from the EIS, and may be integrated into any other appropriate decision-making document that can be made publicly available provided that the content requirements are met, presents all the factors an agency considered when it reached its decision on whether to, and if so how to, proceed with the proposed action.

    The FEMA Instruction in section 3.5.B.3 also addresses the record of decision, stating that an EIS will conclude with a record of decision to provide a concise public record of the decision whether to proceed with a proposed action. It states that a record of decision will complete the NEPA process, and will include the basis for the decision, summarize any EHP mitigation measures, and describe the alternatives and relevant factors considered during the NEPA process. It states that it will identify the environmentally preferred alternative, which is the alternative that will promote the national environmental policy as expressed in NEPA Section 101.

    Neither the DHS Instruction nor the FEMA Instruction recommends a specific page length, but both refer to the “concise” nature of the document.

    3. 44 CFR 10.12(c) Mitigation & 44 CFR 10.12(d) Monitoring

    Paragraph (c) of § 10.12 addresses mitigation throughout the NEPA process and paragraph (d) of § 10.12 addresses monitoring of the mitigation. Specifically, paragraph (c) states that the Regional Administrator shall consider mitigating measures to avoid or minimize environmental harm and, in particular, harm to or within flood plains and wetlands. It states that mitigation measures or programs will be identified in the EIS and made available to decision makers, and that mitigation and other conditions established in the EIS or during its review and committed as part of the decision shall be implemented by the Regional Administrator.

    Paragraph (d) states that if the Regional Administrator determines that monitoring is applicable for established mitigation, a monitoring program will be adopted to assure the mitigation measures are accomplished, and that the Regional Administrator shall provide monitoring information, upon request, as specified in 40 CFR 1505.3 (regarding monitoring). Finally, it states that this does not include standing or blanket requests for periodic reporting.

    The DHS Instruction at section V.E addresses mitigation and monitoring together and provides requirements similar to those stated in § 10.12. It states that when a component commits to mitigation measures to reduce or eliminate potential adverse effects of an action, it is essential that the component implements the measures and monitors their effectiveness. It states that components commit to appropriate, practical, and implementable mitigation measures identified in a finding of no significant impact or record of decision that they have sufficient legal authority to implement or impose on applicants.

    The DHS Instruction describes mitigation measures as practical and implementable, i.e., those that are reasonably expected to achieve their intended purpose; implementable mitigation measures require not only that the component have the appropriate legal authority, but also that it can reasonably foresee the availability of resources for performing the mitigation. It states that where the mitigation is being imposed on an applicant for DHS funding or approval to perform their proposed action, components make the mitigation a condition of DHS approval of the applications from persons or organizations external to DHS (referring to the CEQ regulation on monitoring at 40 CFR 1505.3).

    The DHS Instruction stresses that adequately documenting and monitoring mitigation advances NEPA's purpose of informed and transparent environmental decision-making, and that failure to implement, document, and/or monitor mitigation may undermine the integrity of the NEPA analysis, and may compromise the adequacy of the NEPA compliance effort. Once a component has committed to mitigation measures, the DHS Instruction requires all decisions to modify or suspend those measures to be made in consultation with the DHS Office of General Counsel and the component's respective Environmental Planning Program Manager.40

    40 This is FEMA's Director of the Office of Environmental Planning and Historic Preservation. See FEMA Directive section VI.E.

    The FEMA Instruction also addresses mitigation and monitoring together, in section 2.3.A. It states FEMA will consider EHP mitigation measures to avoid or minimize impacts identified during the EHP review process. It states that avoidance measures are the preferred method of EHP mitigation, and only when avoidance cannot be achieved because it is not feasible, practicable, or reasonable, may FEMA consider minimizing, rectifying, or compensating for the impacts of the action, in that order. It states that EHP mitigation measures will be identified in EHP review documentation as well as appropriate award documents and made available to decision makers, and that if FEMA determines that monitoring is applicable for established EHP mitigation, a monitoring program will be adopted to assure EHP mitigation measures are implemented and intended outcomes are accomplished (section 2.3.B.2).

    M. 44 CFR 10.13 Emergencies

    Section 10.13 states that in the event of an emergency, the Regional Administrator may be required to take immediate action with significant environmental impact. It states that the Regional Administrator shall notify the Environmental Officer of the emergency action at the earliest possible time so that the Environmental Officer may consult with CEQ, and in no event shall any Regional Administrator delay an emergency action necessary for the preservation of human life for the purpose of complying with the provision of this directive or the CEQ regulations. Section VI of the DHS Instruction addresses emergency actions, outlining four phases to apply when performing NEPA activities during an emergency: (1) Secure lives and protect property, (2) determine applicability of NEPA, (3) notification of SEP, (4) determine level of NEPA evaluation.

    The FEMA Instruction addresses emergencies in § 2.5 and covers the following circumstances: (1) Legal Exemption. FEMA will determine whether a legal exemption related to the proposed emergency action exists and, if so, the EHP requirements to which the exemption applies; (2) Principles, Requirements, and Guidelines do not apply when there is emergency work essential to save lives and protect property, public health, and safety performed under Sections 403 and 502 of the Stafford Act (42 U.S.C. 5170b and 5192); (3) Stafford Act declaration: FEMA may provide funding for emergency actions taken in direct response to a disaster event that were not subject to EHP review provided the actions satisfy other eligibility requirements as established by FEMA programs; (4) Programmatic EHP Review and Existing Documentation: In cases where programmatic consultations, memoranda of agreement, biological assessments, general permits, and environmental analyses have already been conducted for the emergency action, FEMA will incorporate the existing documentation into its own analyses and documentation; (5) Emergency Consultations and Notifications: If the emergency action is not legally exempted and a previous analysis covering the action does not exist, emergency consultation with the appropriate resource/regulatory agency may be required. FEMA will consult with the appropriate resource/regulatory agency as soon as possible. The FEMA Instruction defines “emergency” for purposes of this section.41

    41 The FEMA Instruction defines “emergency” as “A natural or man-made disaster or other phenomenon of an exceptional, inevitable, and irresistible character demanding immediate action for the protection of human life, public safety, public health, or the environment and avoidance of significant loss of property if it relates to one of the other factors. This definition includes but is not limited to situations triggering emergency and major disaster declarations by the President under the Stafford Act.” The Stafford Act defines “emergency” for purposes of a Presidential emergency declaration as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.” See 42 U.S.C. 5122(1).

    N. 44 CFR 10.14 Flood Plains and Wetlands

    Section 10.14 states that for any action taken by FEMA in a flood plain or wetland, the provisions of Part 10 are supplemental to, and not instead of, the provisions of the FEMA regulation implementing Executive Order 11988, Floodplain Management, and Executive Order 11990, Protection of Wetlands (44 CFR part 9). The introduction paragraph of Chapter 2 of the FEMA Instruction refers to other EHP requirements including Executive Orders 11988 and 11990, and indicates that the FEMA Directive and Instruction do not serve as implementing procedures for those requirements. The FEMA Directive and Instruction do not take the place of 44 CFR part 9.

    O. 44 CFR Part 60 Criteria for Land Management and Use

    Section 60.6 states that the decision whether an EIS or other environmental document will be prepared, will be made in accordance with the procedures set out in 44 CFR part 10. Because NEPA compliance procedures will no longer be set out in Part 10, but are set out in CEQ regulations, DHS implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and stating that the decision will be made in accordance with applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy.

    P. 44 CFR Part 78 Flood Mitigation Assistance

    Section 78.11 states that projects must be in conformance with 44 CFR part 10, and any applicable environmental laws and regulations. FEMA is simply removing the reference to Part 10. This change reflects that projects must conform with applicable environmental laws and regulations, including NEPA requirements, even though those requirements are no longer set out in Part 10.

    Q. 44 CFR Part 79 Flood Mitigation Grants

    Section 79.3 states that it is FEMA's responsibility to “[c]omply with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, the environmental analyses conducted by the State and subgrantee in accordance with part 10 of this chapter.” 44 CFR 79.3(a)(6). FEMA is replacing the reference to Part 10 with a reference to applicable laws, regulations, and agency policy, as FEMA will comply with applicable CEQ regulations and Department and Agency-wide NEPA implementing procedures.

    Section 79.6 states that mitigation grant projects must be in conformance with “part 9 of this chapter, Floodplain management and protection of wetlands, part 10 of this chapter, Environmental Considerations, § 60.3 of this subchapter, Flood plain management criteria for flood-prone areas, and other applicable Federal, State, tribal, and local laws and regulations.” 44 CFR 79.6(d)(2). FEMA is simply removing the reference to Part 10. This change reflects that projects must conform with applicable environmental laws and regulations, including NEPA requirements, even though those requirements are no longer set out in Part 10.

    R. 44 CFR Part 80 Property Acquisition and Relocation for Open Space

    Section 80.5 describes FEMA's responsibility to “[c]omply with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, the environmental analyses conducted by the State and subgrantee in accordance with part 10 of this chapter.” 44 CFR 80.5(a)(5). FEMA is replacing the reference to Part 10 with a reference to applicable laws, regulations, and agency policy, as FEMA will comply with applicable CEQ regulations and Department and Agency-wide NEPA implementing procedures.

    S. 44 CFR Part 206 Federal Disaster Assistance

    Section 206.110 states that “[a]ssistance provided under this subpart must comply with the National Environmental Policy Act (NEPA) and other environmental laws and Executive Orders, consistent with 44 CFR part 10.” 44 CFR 206.110(l). Because NEPA compliance procedures are set out in CEQ regulations, DHS implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and revising the paragraph to reflect that NEPA compliance procedures are set out in applicable laws, regulations, and policies.

    Section 206.117, Housing Assistance, states that “[a]ny site upon which a FEMA-provided housing unit is placed must comply with applicable State and local codes and ordinances, as well as 44 CFR part 9, Floodplain Management and Protection of Wetlands, and 44 CFR part 10, Environmental Considerations, and all other applicable environmental laws and Executive Orders.” 44 CFR 206.117(b)(1)(ii)(C). Because NEPA compliance procedures are set out in CEQ regulations, DHS implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and revising the paragraph to reflect that NEPA compliance procedures are set out in applicable laws, regulations, and policies.

    Section 206.220, Public Assistance Eligibility, states that the regulations under 44 CFR part 10 apply to public assistance. Because the requirements formerly in Part 10 are now set out in applicable regulation, implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and clarifying that public assistance must conform to requirements in applicable environmental and historic preservation laws, regulations, and agency policies.

    Section 206.434 states that in order to be eligible for the Hazard Mitigation Grant Program, a project must be in comformance with 44 CFR part 10. Because the requirements formerly in Part 10 are now set out in applicable regulation, implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and clarifying that a project must conform to requirements in applicable environmental and historic preservation laws, regulations, and agency policies.

    Section 206.436 requires that the hazard mitigation application include environmental information consistent with 44 CFR part 10. FEMA is removing the reference to Part 10 and replacing it with a reference to applicable environmental and historic preservation laws, regulations, and agency implementing policies.

    T. 44 CFR Part 209 Supplemental Property Acquisition and Elevation Assistance

    Section 209.6 states that in order to be eligible, projects must conform with 44 CFR part 9, Floodplain Management and Protection of Wetlands; 44 CFR part 10, Environmental Considerations; and any applicable environmental and historic preservation laws and regulations. 44 CFR 209.6(b)(3). Because the requirements formerly in Part 10 are now set out in applicable regulation, implementing procedures, and supplemental instructions, FEMA is removing the reference to Part 10 and clarifying that projects must conform to requirements in applicable environmental and historic preservation laws, regulations, and agency policies.

    IV. Regulatory Analysis Administrative Procedure Act

    The Administrative Procedure Act (APA) requires agencies to provide public notice and seek public comment on substantive regulations. See 5 U.S.C. 553. The APA, however, provides limited exceptions to this requirement for notice and public comment. See 5 U.S.C. 553(b). FEMA did not undertake notice and comment for this final rule because this final rule is a rule of “agency organization, procedure, or practice” and is exempt from notice and comment under section 553(b)(A) of the APA. 5 U.S.C. 553(b)(A). This rule addresses FEMA's internal agency procedures for carrying out NEPA, and maintains existing practice within FEMA for completing the NEPA process. FEMA is removing these internal agency procedures from regulation and replacing them with an internal Directive and Instruction. Notice and opportunity for public comment are not required because the internal procedures do not affect or impose substantive requirements on the public.

    Section 553(d) of the APA also requires agencies to provide a 30-day delayed effective date for substantive rules. See 5 U.S.C. 553(d). However, FEMA finds that this final rule may be made effective immediately because it has good cause pursuant to section 553(d)(3) of the APA (5 U.S.C. 553(d)). This final rule removes internal agency NEPA procedures from the Code of Federal Regulations and replaces them with a Directive and Instruction. These procedures do not affect or impose substantive requirements on the public, but rather apply to internal agency procedure. Moreover, the Directive and Instruction maintain existing practice within FEMA for completing the NEPA process. Therefore, FEMA finds that this final rule may be made effective immediately upon publication in the Federal Register.

    Executive Order 12866, as Amended, Regulatory Planning and Review; Executive Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.

    This rule removes FEMA regulations in 44 CFR part 10 which have been replaced by new Department of Homeland Security procedures. FEMA will no longer be implementing Environmental and Historic Preservation requirements through regulation. Instead, it will follow DHS procedures and supplement them through the issuance of an internal Directive and Instruction. As such, this rule change will remove unnecessary FEMA regulations. The policies and procedures in this final rule maintain the existing practice within FEMA for completing the NEPA process and thus, no additional costs on the public are expected. FEMA expects this rule to result in additional opportunity costs to FEMA staff that are estimated to cost $619,242 over ten years at a 7% discount rate.

    The Directive describes the responsibilities of senior FEMA staff with regards to Environmental and Historic Preservation (EHP) policies as well as procedures for all EHP analyses and associated decision documents. The Instruction, which is more detailed than the Directive, provides guidance for the implementation of NEPA and other EHP requirements across FEMA.

    The transition to the Directive and Instruction only makes minimal changes to the procedures identified in 44 CFR part 10 with regards to responsibilities. For example, 44 CFR part 10.3(c) defines the Environmental Officer as the Director of the Office of Environmental and Historic Preservation (OEHP) or his or her designee while the Directive establishes the Environmental Officer as a separate position. By policy, the Environmental Officer has been a separate position designated by the Director of OEHP. Thus, there is no impact to current procedures. The Directive also shifts responsibility for reviewing proposed changes to Categorical Exclusions (CATEXs) from the Office of Chief Counsel to the Environmental Officer with support from the chief counsel. In practice, the review of CATEXs has always had significant input from the Environmental Officer, so this rule only shifts the final sign-off from the Chief Counsel to the Environmental Officer while not dramatically impacting the workload of either office.

    Other associated changes involve shifting responsibilities to DHS. For instance, the Department is now responsible for adding to, revising, or deleting items on the DHS list of CATEXs. In addition, the DHS Director of Sustainability and Environmental Programs is now the liaison with the CEQ, EPA, OMB, and other Federal agencies which was previously the responsibility of the FEMA Environmental Officer.

    The Directive and Instruction provide instruction on the implementation of the new internal requirements to FEMA programs. Specifically, FEMA programs are now required to develop EHP implementation plans and update them every 3 years. FEMA estimates this will entail an average of 200 hours per program including staff work and management review. To estimate cost, FEMA uses the equivalent of a GS-13 Step 5 in the Washington Metro Area. Wage rates have been multiplied by 1.46 to account for benefits, and other associated employment costs to estimate the fully-loaded wage rate.42 The fully loaded wage of a GS-13 Step 5 is $72.01 ($49.32 × 1.46 = $72.01).43 This equates to an initial cost of $14,401 (200 hours × $72.01 = $14,401) per program. FEMA expects that development of EHP implementation plans will impact the 3 major grant programs and have a limited effect on FEMA facilities staff which FEMA equates to 0.5 of a program for the purposes of analysis. This results in an estimated total of $50,405 ($14,401 × 3.5 programs = $50,405) across FEMA. FEMA anticipates these requirements will be completed with existing resources and do not require any new Federal or contractor employees and thus considered as opportunity costs. FEMA estimates the 3 year updates will require an average of 100 hours to review. This results in an estimated review cost of $25,203 ($72.01 × 00 hours × 3.5 programs = $25,203).

    42 Bureau of Labor Statistics, Employer Costs for Employee Compensation, Table 1. “Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, December 2015.” Available at http://www.bls.gov/news.release/archives/ecec_03102016.htm. Accessed July 12, 2016. Calculated by dividing total compensation for all workers of $33.58 by wages and salaries for all workers of $23.06 per hour (yields a benefits multiplier of approximately 1.46×wages).

    43 Office of Personnel Management 2015 General Schedule hourly wage for the locality pay area of Washington—Baltimore-Northern Virginia, DC-MD-VA-WV-PA retrieved from https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2015/DCB_h.pdf.

    FEMA programs with EHP responsibilities are also required to undergo an EHP concurrence process that is expected to entail between 200 and 500 hours per program annually. To estimate cost, FEMA uses the equivalent of a GS-12 Step 5 in the Washington Metro Area at a fully loaded wage of $60.56 ($41.48 × 1.46 = $60.56). The resulting additional unit cost across the major programs ranges between $12,112 ($60.56 × 200hrs = $12,112) and $30,280 ($60.56 × 500 hours = $30,280), with a primary estimate of $21,196 ($60.56 × 350 hours = $21,196) annually. The total annual EHP concurrence process costs ranges between $42,392 ($12,112 × 3.5 = $42,392) and $105,981 ($30,280 × 3.5 = $105,981) with a primary estimate of $74,187 ($21,196 × 3.5 = $74,187). FEMA intends to use its existing staff and funding to carry out these functions and thus such costs are again only considered as opportunity costs.

    Based on the above cost estimates, the estimated first year costs of the new procedures range from $92,797 ($50,405 + $42,392) to $156,386 ($50,405 + $105,981)with a primary estimate of $124,592 ($50,405 + $74,187). The estimated annual costs after the first year range from $42,392 to $105,981 with a primary estimate of $74,187 per year except in years with EHP Implementation Plan Updates. These updates are anticipated to occur in years three, six, and nine. The estimated total undiscounted costs over 10 years ranges from $549,934 to $1,185,824 with a primary estimate of $867,884. Discounted at 3% over 10 years leads to an estimated annualized cost ranging from $55,572 to $119,161 with a primary estimate of $87,367. At a 7% discount rate, the annualized costs range from $56,371 to $119,960 with a primary estimate of $88,166. See Table 1 for additional details.

    Table 1—10-Year Costs of Directive and Instruction Changes Year Low Primary High 1 $92,797 $124,592 $156,386 2 42,392 74,187 105,981 3 67,595 99,390 131,184 4 42,392 74,187 105,981 5 42,392 74,187 105,981 6 67,595 99,390 131,184 7 42,392 74,187 105,981 8 42,392 74,187 105,981 9 67,595 99,390 131,184 10 42,392 74,187 105,981 10-Year Undiscounted Total 549,934 867,884 1,185,824 10-Year Discounted at 3% 474,037 745,254 1,016,464 Annualized at 3% 55,572 87,367 119,161 10-Year Discounted at 7% 395,927 619,242 842,549 Annualized at 7% 56,371 88,166 119,960

    As the rule only applies to DHS and FEMA internal procedures and does not impact the requirements of entities going through NEPA and EHP procedures, FEMA does not anticipate any impacts to entities outside of the Department of Homeland Security.

    Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601-612, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments) when issuing a notice of proposed rulemaking. As FEMA is not issuing a proposed rule for this action, the RFA does not apply.

    Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year (approximately $157 million in 2015 dollars). The final rule does not result in the expenditure of State, local, and Tribal governments of greater than $157 million in any given year. Therefore, this rule is not an unfunded Federal mandate under that Act.

    National Environmental Policy Act of 1969 (NEPA)

    Under the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. 4321, 4331-4335, 4344, 4365, an agency must prepare an EA and EIS for any rulemaking that significantly affects the quality of the human environment. FEMA has determined that this rulemaking does not significantly affect the quality of the human environment and consequently has not prepared an EA or EIS.

    Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency obtains approval from OMB for the collection and the collection displays a valid OMB control number. See 44 U.S.C. 3506, 3507. There are no information collections required under 44 CFR part 10. There are specific FEMA programs that do collect information regarding environmental considerations for certain projects; 44 however, those collections are sponsored by separate program information collections and not under Part 10. Those collections are not affected by the removal of Part 10.

    44 E.g., OMB No. 1660-0017 for the Public Assistance Program; OMB No. 1660-0072 for the Hazard Mitigation Grant Program; OMB No. 1660-0022 for the Community Rating System (CRS) program.

    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249, November 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials.

    This rule does not have Tribal implications. It governs internal agency procedure and does not place any requirements on Tribes.

    Executive Order 13132, Federalism

    Executive Order 13132, “Federalism,” 64 FR 43255, August 10, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

    FEMA has reviewed this rule under Executive Order 13132 and has determined that this rule does 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, and therefore does not have federalism implications as defined by the Executive Order.

    Executive Order 11988, Floodplain Management

    Pursuant to Executive Order 11988, each agency is required to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for: (1) Acquiring, managing, and disposing of Federal lands and facilities; (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. In carrying out these responsibilities, each agency must evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive Order.

    Before promulgating any regulation, an agency must determine whether the proposed regulations will affect a floodplain(s), and if so, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain(s). If the head of the agency finds that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 is to promulgate a regulation that affects a floodplain(s), the agency must, prior to promulgating the regulation, design or modify the regulation in order to minimize potential harm to or within the floodplain, consistent with the agency's floodplain management regulations and prepare and circulate a notice containing an explanation of why the action is proposed to be located in the floodplain. The changes in this final rule will not have an effect on floodplain management. This rule addresses FEMA's internal agency procedures for carrying out NEPA, and maintains existing practice within FEMA for completing the NEPA process. When FEMA undertakes specific actions that may have effects on floodplain management, FEMA follows the procedures set forth in 44 CFR part 9 to assure compliance with this Executive Order. This serves as the notice that is required by the Executive Order.

    Executive Order 11990, Protection of Wetlands

    Pursuant to Executive Order 11990, each agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for: (1) Acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds: (1) That there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors.

    In carrying out the activities described in the Executive Order, each agency must consider factors relevant to a proposal's effect on the survival and quality of the wetlands. Among these factors are: Public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses.

    The changes in this final rule will not have an effect on land use or wetlands. This rule addresses FEMA's internal agency procedures for carrying out NEPA, and maintains existing practice within FEMA for completing the NEPA process. When FEMA undertakes specific actions that may have such effects, FEMA follows the procedures set forth in 44 CFR part 9 to assure compliance with this Executive Order.

    Congressional Review of Agency Rulemaking

    Under the Congressional Review of Agency Rulemaking Act (CRA), 5 U.S.C. 801-808, before a rule can take effect, the Federal agency promulgating the rule must submit to Congress and to the Government Accountability Office (GAO) a copy of the rule, a concise general statement relating to the rule, including whether it is a major rule, the proposed effective date of the rule, a copy of any cost-benefit analysis, descriptions of the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act, and any other information or statements required by relevant executive orders.

    FEMA has sent this rule to the Congress and to GAO pursuant to the CRA. The rule is not a “major rule” within the meaning of the CRA. It will not have an annual effect on the economy of $100,000,000 or more, it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    List of Subjects 44 CFR Part 10

    Environmental Impact Statements.

    44 CFR Part 60

    Flood insurance, Flood plains, Reporting and recordkeeping requirements.

    44 CFR Parts 78 and 79

    Flood insurance, Grant programs.

    44 CFR Part 80

    Disaster assistance, Grant programs.

    44 CFR Part 206

    Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs-housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs-housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.

    44 CFR Part 209

    Administrative practice and procedure, Disaster assistance, Grant programs, Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, and under the authority of the Homeland Security Act of 2002, 6 U.S.C. 101 et seq., Department of Homeland Security Delegation 9001.1, and the National Environmental Policy Act, 42 U.S.C. 4321, 4331-4335, 4344, 4365, the Federal Emergency Management Agency amends 44 CFR Chapter I, as follows:

    PART 10—[REMOVED AND RESERVED] 1. Remove and reserve part 10, consisting of §§ 10.1 through 10.14. PART 60—CRITERIA FOR LAND MANAGEMENT AND USE 2. The authority citation for part 60 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

    3. In § 60.6, revise the second sentence of paragraph (b)(2) to read as follows:
    § 60.6 Variances and exceptions.

    (b) * * *

    (2) * * * The decision whether an Environmental Impact Statement or other environmental document will be prepared, will be made in accordance with applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy. * * *

    PART 78—FLOOD MITIGATION ASSISTANCE 4. The authority citation for part 78 continues to read as follows: Authority:

    6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

    5. In § 78.11, revise paragraph (b) to read as follows:
    § 78.11 Minimum project eligibility criteria.

    (b) Be in conformance with 44 CFR part 9, Floodplain Management and Protection of Wetlands; Executive Order 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction; and any applicable environmental laws and regulations.

    PART 79—FLOOD MITIGATION GRANTS 6. The authority citation for part 79 continues to read as follows: Authority:

    6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

    7. In § 79.3, revise paragraph (a)(6) to read as follows:
    § 79.3 Responsibilities.

    (a) * * *

    (6) Comply with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, the environmental analyses conducted by the State and subgrantee in accordance with applicable laws, regulations, and agency policy;

    8. In § 79.6, revise paragraph (d)(2) to read as follows:
    § 79.6 Eligibility.

    (d) * * *

    (2) Be in conformance with part 9 of this chapter, Floodplain management and protection of wetlands, § 60.3 of this subchapter, Flood plain management criteria for flood-prone areas, and other applicable Federal, State, tribal, and local laws and regulations;

    PART 80—PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE 9. The authority citation for part 80 continues to read as follows: Authority:

    Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

    10. In § 80.5, revise paragraph (a)(5) to read as follows:
    § 80.5 Roles and responsibilities.

    (a) * * *

    (5) Complying with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, environmental analyses conducted by the State and subgrantee in accordance with applicable laws, regulations, and agency policy;

    PART 206—FEDERAL DISASTER ASSISTANCE 11. The authority citation for part 206 continues to read as follows: Authority:

    Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security Delegation 9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C. 5189a note).

    12. In § 206.110, revise paragraph (l) to read as follows:
    § 206.110 Federal assistance to individuals and households.

    (l) Environmental requirements. Assistance provided under this subpart must comply with the National Environmental Policy Act (NEPA) and other environmental laws, regulations, Executive Orders, and applicable agency policy.

    13. In § 206.117, revise paragraph (b)(1)(ii)(C) to read as follows:
    § 206.117 Housing assistance.

    (b) * * *

    (1) * * *

    (ii) * * *

    (C) Any site upon which a FEMA-provided housing unit is placed must comply with applicable State and local codes and ordinances, as well as 44 CFR part 9, Floodplain Management and Protection of Wetlands, and all other applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy.

    14. Revise § 206.220 to read as follows:
    § 206.220 General.

    This subpart provides policies and procedures for determinations of eligibility of applicants for public assistance, eligibility of work, and eligibility of costs for assistance under sections 402, 403, 406, 407, 418, 419, 421(d), 502, and 503 of the Stafford Act. Assistance under this subpart must also conform to requirements of 44 CFR part 201, Mitigation Planning, 44 CFR part 206, subparts G—Public Assistance Project Administration, I—Public Assistance Insurance Requirements, J—Coastal Barrier Resources Act, and M—Minimum Standards, 44 CFR part 9—Floodplain Management, and other applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy.

    15. In § 206.434, revise paragraph (c)(3) to read as follows:
    § 206.434 Eligibility.

    (c) * * *

    (3) Be in conformance with 44 CFR part 9, Floodplain Management and Protection of Wetlands, and other applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy;

    16. In § 206.436, revise paragraph (c)(10) to read as follows:
    § 206.436 Application procedures.

    (c) * * *

    (10) Environmental information consistent with 44 CFR part 9, Floodplain Management and Protection of Wetlands, and other applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy.

    PART 209—SUPPLEMENTAL PROPERTY ACQUISITION AND ELEVATION ASSISTANCE 17. The authority citation for part 209 continues to read as follows: Authority:

    Pub. L. 106-113, Div. B, sec. 1000(a)(5) (enacting H.R. 3425 by cross-reference), 113 Stat. 1501, 1536; Pub. L. 106-246, 114 Stat. 511, 568; Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412.

    18. In § 209.6, revise paragraph (b)(3) to read as follows:
    § 209.6 Project eligibility.

    (b) * * *

    (3) Conform with 44 CFR part 9, Floodplain Management and Protection of Wetlands, and other applicable environmental and historic preservation laws, regulations, Executive Orders, and agency policy.

    Dated: August 2, 2016. W. Craig Fugate, Administrator, Federal Emergency Management Agency.
    [FR Doc. 2016-19536 Filed 8-19-16; 8:45 am] BILLING CODE 9111-A6-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151211999-6343-02] RIN 0648-XE811 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool Fishery AGENCY:

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

    ACTION:

    Temporary rule; area closure.

    SUMMARY:

    This action closes the Gulf of Maine Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear for the remainder of Trimester 1, through August 31, 2016. The closure is required by regulation because the common pool fishery has caught 90 percent of its Trimester 1 quota for Gulf of Maine cod. This closure is intended to prevent an overage of the common pool's quota for this stock.

    DATES:

    This action is effective August 17, 2016, through August 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Liz Sullivan, Fishery Management Specialist, (978) 282-8493.

    SUPPLEMENTARY INFORMATION:

    Federal regulations at § 648.82(n)(2)(ii) require the Regional Administrator to close a common pool Trimester Total Allowable Catch (TAC) Area for a stock when 90 percent of the Trimester TAC is projected to be caught. The closure applies to all common pool vessels fishing with gear capable of catching that stock for the remainder of the trimester.

    As of August 8, 2016, the common pool fishery has caught approximately 88 percent of the Trimester 1 TAC (2.1 mt) for Gulf of Maine (GOM) cod. We project that 90 percent of the Trimester 1 TAC was caught by August 12. The fishing year 2016 common pool sub-annual catch limit (sub-ACL) for GOM cod is 7.6 mt.

    Effective August 17, 2016, the GOM Cod Trimester TAC Area is closed for the remainder of Trimester 1, through August 31, 2016, to all common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear. The GOM Cod Trimester TAC Area consists of statistical areas 513 and 514. The area reopens at the beginning of Trimester 2 on September 1, 2016.

    If a vessel declared its trip through the Vessel Monitoring System (VMS) or the interactive voice response system, and crossed the VMS demarcation line prior to August 17, 2016, it may complete its trip within the Trimester TAC Area.

    Any overage of the Trimester 1 or 2 TACs must be deducted from the Trimester 3 TAC. If the common pool fishery exceeds its sub-ACL for the 2016 fishing year, the overage must be deducted from the common pool's sub-ACL for fishing year 2017. Any uncaught portion of the Trimester 1 and Trimester 2 TACs is carried over into the next trimester. However, any uncaught portion of the common pool's sub-ACL may not be carried over into the following fishing year.

    Weekly quota monitoring reports for the common pool fishery are on our Web site at: http://www.greateratlantic.fisheries.noaa.gov/ro/fso/MultiMonReports.htm. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, VMS catch reports, and other available information, and, if necessary, we will make additional adjustments to common pool management measures.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.

    Regulations require the Regional Administrator to close a trimester TAC area to the common pool fishery when 90 percent of the Trimester TAC for a stock has been caught. Updated catch information only recently became available indicating that the common pool fishery will catch 90 percent of its Trimester 1 TAC for GOM cod on or around August 12, 2016. The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, prevents the immediate closure of the GOM Cod Trimester 1 TAC Area. Delaying the effective date of a closure increases the likelihood that the common pool fishery will exceed its quota of GOM cod to the detriment of this stock, which could undermine management objectives of the Northeast Multispecies Fishery Management Plan. Additionally, an overage of the common pool quota could cause negative economic impacts to the common pool fishery as a result of overage paybacks in a future trimester or fishing year.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 16, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-19983 Filed 8-17-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 150903814-5999-02] RIN 0648-XE755 Fisheries of the Northeastern United States; Scup Fishery; Adjustment to the 2016 Winter II Quota AGENCY:

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

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    NMFS adjusts the 2016 Winter II commercial scup quota. This action complies with Framework Adjustment 3 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which established a process to allow the rollover of unused commercial scup quota from the Winter I period to the Winter II period.

    DATES:

    Effective November 1, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION:

    NMFS published a final rule in the Federal Register on November 3, 2003 (68 FR 62250), implementing a process to roll over unused Winter I commercial scup quota (January 1 through April 30) to be added to the Winter II period quota (November 1 through December 31). This framework also allows adjustment of the commercial possession limit for the Winter II period dependent on the amount of quota rolled over from the Winter I period.

    For 2016, the initial Winter II quota is 3,262,554 lb (1,480 mt), and the best available landings information indicates that 3,192,389 lb (1,448 mt) remain of the Winter I quota of 9,232,987 lb (4,188 mt). Consistent with the intent of Framework 3, the full amount of unused 2016 Winter I quota would be transferred to Winter II, resulting in a revised 2016 Winter II quota of 6,454,943 lb (2,928 mt). Because the amount transferred is greater than 2,000,000 lb (907 mt), the possession limit per trip will increase from 12,000 lb (5,443 kg) to 18,000 lb (8,165 kg), as outlined in the final rule that established the 2016 specifications, published on December 28, 2015 (80 FR 80689).

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA (AA), has determined good cause exists pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this in-season adjustment because it is impracticable and contrary to the public interest. The landings data upon which this action is based are not available on a real-time basis and, consequently, were compiled only a short time before the determination was made that this action is warranted. If implementation of this in-season action is delayed to solicit prior public comment, the objective of the fishery management plan to achieve the optimum yield from the fishery could be compromised; deteriorating weather conditions during the latter part of the fishing year will reduce fishing effort and could prevent the annual quota from being fully harvested. This would conflict with the agency's legal obligation under the Magnuson-Stevens Fishery Conservation and Management Act to achieve the optimum yield from a fishery on a continuing basis, resulting in a negative economic impact on vessels permitted to fish in this fishery. Moreover, the rollover process and potential changes in trip limits were already outlined in the 2016 to 2018 specifications published December 28, 2015, that were provided for notice and comment rulemaking. No comments were received on either part.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 17, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-20031 Filed 8-19-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 150903814-5999-02] RIN 0648-XE810 Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Harvested for the Commonwealth of Massachusetts AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS announces that the 2016 summer flounder commercial quota allocated to the Commonwealth of Massachusetts has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Massachusetts for the remainder of calendar year 2016, unless additional quota becomes available through a transfer from another state. Regulations governing the summer flounder fishery require publication of this notification to advise Massachusetts that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no Federal commercial quota is available for landing summer flounder in Massachusetts.

    DATES:

    Effective 0001 hours, August 19, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, (978) 281-9112, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102.

    The initial commercial quota for summer flounder for the 2016 calendar year was set equal to 8,124,035 lb (3,684,997 kg) (80 FR 80689, December 28, 2015). The percent allocated to vessels landing summer flounder in Massachusetts is 6.82046 percent, resulting in an initial commercial quota of 554,097 lb (251,334 kg). This allocation was adjusted to 577,777 lb (262,075 kg) after Massachusetts received quota transfers from the states of Virginia and North Carolina.

    The Administrator, Greater Atlantic Region, NMFS (Regional Administrator), monitors the state commercial landings and determines when a state's commercial quota has been harvested. NMFS is required to publish notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is no longer available to landing summer flounder in that state. The Regional Administrator has determined, based upon dealer reports and other available information, that the 2016 Massachusetts commercial summer flounder quota will be harvested by August 12, 2016.

    Section 648.4(b) provides that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, August 19, 2016, landings of summer flounder in Massachusetts by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2016 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register. Effective 0001 hours, August 19, 2016, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Massachusetts for the remainder of the calendar year, or unless additional quota becomes available through a transfer from another state.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the summer flounder fishery for Massachusetts until January 1, 2017, under current regulations. The regulations at § 648.103(b) require such action to ensure that summer flounder vessels do not exceed quotas allocated to the states. If implementation of this closure was delayed to solicit prior public comment, the quota for this fishing year would be exceeded, thereby undermining the conservation objectives of the Summer Flounder Fishery Management Plan. The AA further finds, good cause to waive the 30-day delayed effectiveness period, as outline in 5 U.S.C. 553(d)(3), for the reason stated above.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 17, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-19995 Filed 8-19-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151130999-6225-01] RIN 0648-XE802 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY:

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

    ACTION:

    Temporary rule; quota transfer.

    SUMMARY:

    NMFS announces that the states of Florida and Delaware and the Commonwealth of Virginia are transferring portions of their 2016 commercial bluefish quota to the Commonwealth of Massachusetts. These quota adjustments are necessary to comply with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement informs the public of the revised commercial quotas.

    DATES:

    Effective August 19, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION:

    Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

    The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for transferring bluefish quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e)(1)(i) through (iii). The Regional Administrator is required to consider the criteria in § 648.162(e) in the evaluation of requests for quota transfers or combinations.

    The transfers and the final revised quotas are shown in Table 1. These quota transfers were requested by the Commonwealth of Massachusetts to ensure that its 2016 quota would not be exceeded. The Regional Administrator has determined that the criteria set forth in § 648.162(e)(1)(i) through (iii) have been met. The quotas in Table 1 are based on the final rule implementing the 2016-2018 Atlantic Bluefish Specifications that became effective August 4, 2016 (81 FR 18559), and any subsequent approved state transfers.

    Table 1—Atlantic Bluefish Transfers, by State State Transfer lb kg Final 2016 quota lb kg Massachusetts 150,000 68,039 478,096 216,861 Delaware −50,000 −22,679 41,746 18,935 Virginia −50,000 −22,679 450,287 204,246 Florida −50,000 −22,679 341,394 154,853 Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 17, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-19997 Filed 8-19-16; 8:45 am] BILLING CODE 3510-22-P
    81 162 Monday, August 22, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8186; Directorate Identifier 2016-NM-074-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This proposed AD was prompted by reports of skin cracking found at the corners of the aft entry and aft galley doorways. This proposed AD would require repetitive inspections for cracking of the corners of the aft entry and aft galley doorways; and repair if necessary, which would terminate the repetitive inspections of the repaired areas. We are proposing this AD to detect and correct cracking of the corners of the aft entry and aft galley doorways, which could result in rapid decompression and consequent reduced structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by October 6, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8186.

    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-2016-8186; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8186; Directorate Identifier 2016-NM-074-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We received reports of skin cracking found at the corners of the aft entry and aft galley doorways. These cracks are most common at the lower forward corners and the upper aft corners of the doorways, and the crack lengths range from 0.25 to 4.50 inches. At the time of crack detection, the airplanes had accumulated between 26,896 and 73,655 total flight cycles. These cracks are caused by fatigue from cyclic pressurization of the fuselage combined with increased stress concentration due to the proximity of the fastener holes to the corners of the doorways. The cracks typically originate at the fastener holes and grow towards the corners of the doorways. This condition, if not corrected, could result in rapid decompression and consequent reduced structural integrity of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016. The service information describes procedures for, among other things, external detailed inspections for cracking of the skin assembly of the corners of the aft entry and aft galley doorways, and repair of any cracking. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously.

    Explanation of Applicability

    Model 737 airplanes having line numbers 1 through 291 have a limit of validity (LOV) of 34,000 total flight cycles. These airplanes have accumulated total flight cycles beyond that LOV. Although operation of an airplane beyond its LOV is prohibited by 14 CFR 121.1115 and 129.115, this proposed AD would include those airplanes in the applicability so that these airplanes are tracked in the event the LOV is extended in the future.

    Costs of Compliance

    We estimate that this proposed AD affects 326 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections 22 work-hours × $85 per hour = $1,870 per inspection cycle $0 $1,870 per inspection cycle $609,620 per inspection cycle.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-8186; Directorate Identifier 2016-NM-074-AD. (a) Comments Due Date

    We must receive comments by October 6, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes; certificated in any category; as identified in Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of skin cracking found at the corners of the aft entry and aft galley doorways. We are issuing this AD to detect and correct cracking of the corners of the aft entry and aft galley doorways, which could result in rapid decompression and consequent reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspections for Group 1 Airplanes

    For airplanes identified as Group 1 in Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016: Within 120 days after the effective date of this AD, inspect the airplane using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (h) Repetitive Inspections for Groups 2 Through 8 Airplanes

    For airplanes identified as Groups 2 through 8 in Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016, except as required by paragraph (j) of this AD: Do low frequency eddy current and detailed inspections for cracking of the aft entry and aft galley doorway corners, as applicable, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016. Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016.

    (i) Repair

    If any crack is found during any inspection required by paragraph (h) of this AD, repair before further flight, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016. Accomplishment of this repair terminates the repetitive inspections required by paragraph (h) of this AD for the repaired doorway corner location only.

    (j) Exception to Service Information Specifications

    Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1350, dated May 6, 2016, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

    (i) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(3)(i) and (k)(3)(ii) of this AD apply. The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (l) Related Information

    (1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, WA, on August 11, 2016. Paul R. Bernado, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-19935 Filed 8-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8845; Directorate Identifier 2016-NM-094-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes; and Model MD-88 airplanes. This proposed AD was prompted by a report of fatigue cracking in a rear spar lower cap of the horizontal stabilizer. This proposed AD would require repetitive inspections for cracking of the rear spar lower caps of the horizontal stabilizer, post-modification and post-repair inspections, and corrective actions if necessary. This proposed AD also provides an optional terminating fatigue life enhancement modification. We are proposing this AD to detect and correct fatigue cracking in the rear spar lower caps of the horizontal stabilizer, which, paired with cracking in adjacent areas, could adversely affect the structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by October 6, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800-0019, Long Beach, CA 90846-0001; telephone 206-544-5000, extension 2; fax 206-766-5683; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8845.

    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-2016-8845; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Haytham Alaidy, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8845; Directorate Identifier 2016-NM-094-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received a report of a 0.513-inch crack in a rear spar lower cap of the horizontal stabilizer. The Model MD-88 airplane had accumulated 61,741 total flight hours and 45,985 total landing cycles. Lab analysis on the area adjacent to the crack shows that the crack was caused by fatigue. Such fatigue cracking, paired with cracking in adjacent areas, could adversely affect the structural integrity of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016. The service information describes procedures for doing inspections for cracking of the rear spar lower caps of the horizontal stabilizer, post-modification and post-repair inspections, and repairs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8845.

    The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, specifies to contact the manufacturer for certain instructions, but this proposed AD would require accomplishment of repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 395 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 3 work-hours × $85 per hour = $255 per inspection cycle $0 $255 per inspection cycle $100,725 per inspection cycle. Estimated Costs for Optional Actions Action Labor cost Parts cost Cost per product Modification 59 work-hours × $85 per hour = $ 5,015 per stabilizer $1,267 $6,282 per stabilizer.

    We estimate the following costs to do any necessary replacement that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:

    On-Condition Costs Action Labor cost Parts cost Cost per product Replacement 368 work-hours × $85 per hour = $31,280 per stabilizer $31,408 $62,688 per stabilizer.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions that require repair using a method specified in paragraph (k) of this proposed AD.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-8845; Directorate Identifier 2016-NM-094-AD. (a) Comments Due Date

    We must receive comments by October 6, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes; and Model MD-88 airplanes; certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Unsafe Condition

    This AD was prompted by a report of fatigue cracking in a Model MD-88 rear spar lower cap of the horizontal stabilizer. We are issuing this AD to detect and correct fatigue cracking in the rear spar lower caps of the horizontal stabilizer, which, paired with cracking in adjacent areas, could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections and Corrective Actions

    Except as specified in paragraph (i)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80-55A072, dated April 08, 2016: Do an open hole high frequency eddy current inspection (HFEC) or surface HFEC inspection for cracking of the rear spar lower caps of the horizontal stabilizer, and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, except as specified in paragraph (i)(2) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, until accomplishment of the actions provided by paragraph (h) of this AD.

    (h) Optional Terminating Action

    Accomplishment of the fatigue life enhancement modification in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, terminates the repetitive inspections required by paragraph (g) of this AD.

    (i) Service Information Exceptions

    (1) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) If any cracking is found during any inspection required by this AD, and Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, specifies to contact Boeing for appropriate action: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (j) Post-Modification and Post-Repair Actions

    For airplanes on which any modification or repair specified in (g) or (h) of this AD has been done: At the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016, do all applicable post-modification and post-repair inspections and all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-55A072, dated April 8, 2016; except as specified in paragraph (i)(2) of this AD. All applicable corrective actions must be done before further flight.

    (k) 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 (l)(1) of this AD. Information may be emailed to: [email protected]

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

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

    (4) Except as required by paragraph (i)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (l) Related Information

    (1) For more information about this AD, contact Haytham Alaidy, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800-0019, Long Beach, CA 90846-0001; telephone 206-544-5000, extension 2; fax 206-766-5683; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on August 11, 2016. Paul R. Bernado, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-19936 Filed 8-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 300 [REG-108792-16] RIN 1545-BN37 User Fees for Installment Agreements AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking and notice of public hearing.

    SUMMARY:

    This document contains proposed amendments to the regulations that provide user fees for installment agreements. The proposed amendments affect taxpayers who wish to pay their liabilities through installment agreements. The proposed effective date for these proposed amendments to the regulations is January 1, 2017. This document also provides a notice of public hearing on these proposed amendments to the regulations.

    DATES:

    Written or electronic comments must be received by October 6, 2016. Outlines of topics to be discussed at the public hearing scheduled for October 19, 2016, at 2:00 p.m. must be received by October 6, 2016.

    ADDRESSES:

    Send submissions to: Internal Revenue Service, CC:PA:LPD:PR (REG-108792-16), Room 5203, Post Office Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-108792-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224 or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (indicate IRS and REG-108792-16). The public hearing will be held in the Main IR Auditorium beginning at 2:00 p.m. in the Internal Revenue Service Building, 1111 Constitution Avenue NW., Washington, DC 20224.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed amendments to the regulations, M. Pilar Puerto at (202) 317-5437; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Regina Johnson, at (202) 317-6901; concerning cost methodology, Eva Williams, at (202) 803-9728 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background

    This document contains proposed regulations that would amend §§ 300.1 and 300.2 of the User Fee Regulations (26 CFR part 300), which provide for a user fee applicable to installment agreements under section 6159 of the Internal Revenue Code (Code).

    Section 6159 authorizes the IRS to enter into an agreement with any taxpayer for the payment of tax in installments to the extent the IRS determines that entering into the installment agreement will facilitate the full or partial collection of the tax. Section 301.6159-1(a). Installment agreements are voluntary, and taxpayers may request an installment agreement in person, by completing the appropriate forms and mailing them to the IRS, online, or over the telephone. Before entering into an installment agreement, the IRS may examine the taxpayer's financial position to determine whether such an agreement is appropriate. See Internal Revenue Manual (IRM) 5.14. If the IRS accepts the installment agreement, the IRS must process the payments made by the taxpayer and monitor the taxpayer's compliance with the terms of the agreement. The terms of an agreement generally require the taxpayer to pay the minimum monthly payment on time, file all required tax returns on time, and pay all taxes in-full and on time. See Form 433-D, Installment Agreement. In addition, section 6159(d) requires that the IRS review partial payment installment agreements at least once every two years.

    Under § 300.1, the IRS currently charges three rates for installment agreements. The user fee, in general, is $120 for an installment agreement. The user fee is reduced to $52 for a direct debit installment agreement, which is an agreement whereby the taxpayer authorizes the IRS to request the monthly electronic transfer of funds from the taxpayer's bank account to the IRS. The user fee is $43 notwithstanding the method of payment if the taxpayer is a low-income taxpayer, as defined below.

    Under § 300.2, the IRS currently charges $50 for restructuring or reinstating an installment agreement that is in default. An installment agreement is deemed to be in default when a taxpayer fails to meet any of the conditions of the installment agreement. See IRM 5.14. Currently, there is no exception to this fee for low-income taxpayers.

    Explanation of Provisions A. Overview

    To bring user fee rates for installment agreements in line with the full cost to the IRS of providing these taxpayer specific services, the proposed regulations under §§ 300.1 and 300.2 would increase the user fee for the existing installment agreement types and introduce two new types of online installment agreements, each subject to a separate user fee. Five of these proposed user fee rates are based on the full cost of establishing and monitoring installment agreements. The sixth rate is for low-income taxpayers.

    • Regular Installment Agreements—A taxpayer contacts the IRS in person, by phone, or by mail and sets up an agreement to make manual payments over a period of time either by mailing a check or electronically through the Electronic Federal Tax Payment System (EFTPS). The proposed fee for entering into a regular installment agreement is $225.

    • Direct Debit Installment Agreements—A taxpayer contacts the IRS by phone or mail and sets up an agreement to make automatic payments over a period of time through a direct debit from a bank account. The proposed fee for entering into a direct debit installment agreement is $107.

    • Online Payment Agreements—A taxpayer sets up an installment agreement through http://www.irs.gov and agrees to make manual payments over a period of time either by mailing a check or electronically through the EFTPS. The proposed fee for entering into an online payment agreement is $149.

    • Direct Debit Online Payment Agreements—A taxpayer sets up an installment agreement through http://www.irs.gov and agrees to make automatic payments over a period of time through a direct debit from a bank account. The proposed fee for entering into a direct debit online payment agreement is $31.

    • Restructured/Reinstated Installment Agreements—A taxpayer modifies a previously established installment agreement or reinstates an installment agreement on which the taxpayer has defaulted. The proposed fee for restructuring or reinstating an installment agreement is $89.

    • Low-Income Rate—A rate that applies when a low-income taxpayer enters into any type of installment agreement, other than a direct debit online payment agreement, and when a low-income taxpayer restructures or reinstates any installment agreement. A low-income taxpayer is a taxpayer that has income at or below 250 percent of the dollar criteria established by the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services. Section 300.1(b)(2). The proposed low-income rate is $43.

    B. User Fee Authority

    The Independent Offices Appropriations Act (IOAA) (31 U.S.C. 9701) authorizes each agency to promulgate regulations establishing the charge for services provided by the agency (user fees). The IOAA provides that these user fee regulations are subject to policies prescribed by the President and shall be as uniform as practicable. Those policies are currently set forth in the Office of Management and Budget (OMB) Circular A-25, 58 FR 38142 (July 15, 1993; OMB Circular).

    The IOAA states that the services provided by an agency should be self-sustaining to the extent possible. 31 U.S.C. 9701(a). The OMB Circular states that agencies that provide services that confer special benefits on identifiable recipients beyond those accruing to the general public are to establish user fees that recover the full cost of providing those services. The OMB Circular requires that agencies identify all services that confer special benefits and determine whether user fees should be assessed for those services.

    Agencies are to review user fees biennially and update them as necessary to reflect changes in the cost of providing the underlying services. During this biennial review, an agency must calculate the full cost of providing each service, taking into account all direct and indirect costs to any part of the U.S. government. The full cost of providing a service includes, but is not limited to, salaries, retirement benefits, rents, utilities, travel, and management costs, as well as an appropriate allocation of overhead and other support costs associated with providing the service.

    An agency should set the user fee at an amount that recovers the full cost of providing the service unless the agency requests, and the OMB grants, an exception to the full cost requirement. The OMB may grant exceptions only where the cost of collecting the fees would represent an unduly large part of the fee for the activity or any other condition exists that, in the opinion of the agency head, justifies an exception. When the OMB grants an exception, the agency does not collect the full cost of providing the service and therefore must fund the remaining cost of providing the service from other available funding sources. By doing so, the agency subsidizes the cost of the service to the recipients of reduced-fee services even though the service confers a special benefit on those recipients who should otherwise be required to pay the full costs of receiving that benefit as provided for by the IOAA and the OMB Circular.

    C. Installment Agreement User Fee

    The installment agreement program confers a special benefit on identifiable recipients beyond those accruing to the general public. Specifically, a taxpayer that is granted an installment agreement is allowed to pay an outstanding tax obligation over time without being subjected to IRS levy related to these taxes during this term of repayment. See section 6331(k)(2) of the Code and § 301.6159-1(f). Section 6331(k)(2) generally prohibits the IRS from levying to collect taxes while a request to enter into an installment agreement is pending with the IRS, for 30 days after the rejection of a proposed installment agreement, and for 30 days immediately following the termination of an installment agreement. If, prior to the expiration of the 30-day period following the rejection or termination of an installment agreement, the taxpayer appeals the rejection or termination decision, no levy may be made while the rejection or termination is being considered by Appeals. Because of these special benefits the IOAA and the OMB Circular authorize the IRS to charge a user fee for an installment agreement that reflects the full cost of providing the service of the installment agreement program to the taxpayer.

    The installment agreement user fees were last changed in 2014. As required by the IOAA and the OMB Circular, the IRS completed its 2015 biennial review of the installment agreement program and determined that the full cost of a regular installment agreement is $225, and the full cost of a direct debit installment agreement is $107. The IRS determined that the full cost of a regular online payment agreement is $149, and the full cost for a direct debit online payment agreement is $31. The IRS determined that the full cost of restructuring or reinstating an installment agreement is $89.

    The proposed regulations adopt the full cost amounts as the new user fees for the various types of installment agreements. Historically, the IRS charged a user fee that recovered less than the full cost of an installment agreement to make the service more accessible to a broader range of taxpayers. However, in light of constraints on IRS resources for tax administration, the Treasury Department and the IRS have determined that it is necessary to recoup the full costs of the installment agreement program. The IRS will continue its practice of providing services subject to user fees at less than full cost where there is a compelling tax administration reason to do so. Therefore, these proposed regulations do not increase the reduced user fee for offers submitted by low-income taxpayers and introduce a reduced fee for requests by low-income taxpayers to restructure or reinstate defaulted installment agreements.

    The proposed fees reflect the IRS's determination to continue to provide a wide variety of installment agreement options to taxpayers and, as required by the OMB Circular, to determine the full cost for each option. Since the enactment of the installment agreement program, the IRS has periodically developed new ways for taxpayers to enter into and pay for installment agreements, such as through online payment agreements and direct debit online payment agreements. These new installment agreement types have not had their own separate user fee, but instead have been included in the existing user fee structure. In recent years, taxpayers' use of the online installment agreement options have increased, justifying a separate fee structure for the online installment agreement options.

    Consistent with introducing these new fees, the most recent full cost analysis of the installment agreement program has been refined to more precisely account for the costs associated with administering the various types of installment agreements available to taxpayers. Requesting installment agreements in person or over the phone and receiving payment through means other than direct debit is more costly for the IRS to administer, and the proposed user fees reflect these costs. Similarly, this recent analysis has resulted in the availability of reduced user fees to taxpayers for those options that cost less for the IRS to administer. By offering a range of installment agreement options at a range of fees, the IRS is assisting taxpayers in coming into compliance with their tax payment obligations, which benefits tax administration and provides an enhanced service to taxpayers.

    D. Calculation of User Fees Generally

    User fee calculations begin by first determining the full cost for the service. The IRS follows the guidance provided by the OMB Circular to compute the full cost of the service, which includes all indirect and direct costs to any part of the U.S. government including but not limited to direct and indirect personnel costs, physical overhead, rents, utilities, travel, and management costs. The IRS's cost methodology is described below.

    Once the total amount of direct and indirect costs associated with a service is determined, the IRS follows the guidance in the OMB Circular to determine the costs associated with providing the service to each recipient, which represents the average per unit cost of that service. This average per unit cost is the amount of the user fee that will recover the full cost of the service.

    The IRS follows generally accepted accounting principles (GAAP), as established by the Federal Accounting Standards Advisory Board (FASAB) in calculating the full cost of providing services. The FASAB Handbook of Accounting Standards and Other Pronouncements, as amended, which is available at http://files.fasab.gov/pdffiles/2015_fasab_handbook.pdf, includes the Statement of Federal Financial Accounting Standards No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government (SFFAS No.4). SFFAS No. 4 establishes internal costing standards under GAAP to accurately measure and manage the full cost of federal programs. The methodology described below is in accordance with SFFAS No. 4.

    1. Cost Center Allocation

    The IRS determines the cost of its services and the activities involved in producing them through a cost accounting system that tracks costs to organizational units. The lowest organizational unit in the IRS's cost accounting system is called a cost center. Cost centers are usually separate offices that are distinguished by subject-matter area of responsibility or geographic region. All costs of operating a cost center are recorded in the IRS's cost accounting system and allocated to that cost center. The costs allocated to a cost center are the direct costs for the cost center's activities as well as all indirect costs, including overhead, associated with that cost center. Each cost is recorded in only one cost center.

    2. Determining the Per Unit Cost

    To establish the per unit cost, the total cost of providing the service is divided by the volume of services provided. The volume of services provided includes both services for which a fee is charged as well as subsidized services. The subsidized services are those where OMB has approved an exception to the full cost requirement, for example, to charge a reduced fee to low-income taxpayers. The volume of subsidized services is included in the total volume of services provided to ensure that the IRS, and not those who are paying full cost, subsidizes the cost of the reduced-full cost services.

    3. Cost Estimation of Direct Labor and Benefits

    Not all cost centers are fully devoted to only one service for which the IRS charges a user fee. Some cost centers work on a number of different services. In these cases, the IRS estimates the cost incurred in those cost centers attributable to the service for which a user fee is being calculated by measuring the time required to accomplish activities related to the service, and estimating the average time required to accomplish these activities. The average time required to accomplish these activities is multiplied by the relevant organizational unit's average labor and benefits cost per unit of time to determine the labor and benefits cost incurred to provide the service. To determine the full cost, the IRS then adds an appropriate overhead charge as discussed below.

    4. Calculating Overhead

    Overhead is an indirect cost of operating an organization that cannot be immediately associated with an activity that the organization performs. Overhead includes costs of resources that are jointly or commonly consumed by one or more organizational unit's activities but are not specifically identifiable to a single activity.

    These costs can include:

    • General management and administrative services of sustaining and support organizations.

    • Facilities management and ground maintenance services (security, rent, utilities, and building maintenance).

    • Procurement and contracting services.

    • Financial management and accounting services.

    • Information technology services.

    • Services to acquire and operate property, plants and equipment.

    • Publication, reproduction, and graphics and video services.

    • Research, analytical, and statistical services.

    • Human resources/personnel services.

    • Library and legal services.

    To calculate the overhead allocable to a service, the IRS first calculates the Corporate Overhead rate and then multiplies the Corporate Overhead rate by the direct labor and benefits costs determined as discussed above. The IRS calculates the Corporate Overhead rate annually based on cost elements underlying the Statement of Net Cost included in the IRS Annual Financial Statements, which are audited by the Government Accountability Office. The Corporate Overhead rate is the ratio of the sum of the IRS's indirect labor and benefits costs from the supporting and sustaining organizational units—those that do not interact directly with taxpayers—and all non-labor costs to the IRS's labor and benefits costs of its organizational units that interact directly with taxpayers.

    The Corporate Overhead rate of 65.85 percent for costs reviewed during FY 2015 was calculated based on FY 2014 costs as follows:

    Indirect Labor and Benefits Costs $1,693,339,843 Non-Labor Costs + $2,832,262,970 Total Indirect Costs $4,525,602,813 Direct Labor and Benefits Costs + $6,872,934,473 Corporate Overhead Rate 65.85% E. Calculation of Installment Agreement User Fee

    The full cost analysis considers the common components of each of the five installment agreement types as well as each type's unique cost drivers. The costs for each type of installment agreement are broadly categorized into two groups: (1) Costs incurred by the IRS to establish the installment agreements and (2) costs incurred by the IRS to maintain and monitor the installment agreements.

    The upfront costs for establishing installment agreements requested in person, in writing, or over the phone are significantly higher than those for online payment agreements. For that reason, the upfront costs for establishing installment agreements requested in person, in writing, or over the phone are determined separately and allocated only to installment agreements requested in person, in writing, or over the phone. In contrast, the only upfront costs to establish online payment agreements through http://www.irs.gov are the costs of the online payment agreement system such as annual maintenance and system enhancements, which are only allocated to online payment agreements.

    After installment agreements are established, costs to maintain and monitor them, including routine notices to the taxpayers, vary significantly based on the type of installment agreement. Direct debit installment agreements and direct debit online payment agreements have lower maintenance and monitoring costs because they do not require as much support on an ongoing basis as installment agreements not paid via direct debit. Payments under direct debit installment agreements and direct debit online payment agreements are automatically debited from the taxpayer's bank account. Because payments for direct debit installment agreements and direct debit online payment agreements are automatically debited from taxpayers' accounts without requiring taxpayers to initiate each payment, the IRS does not send monthly payment notices and in general sends fewer notices related to these agreements compared to installment agreements not paid via direct debit. Correspondingly, direct debit installment agreements and direct debit online payment agreements require less IRS time responding to taxpayer inquiries resulting from these notices than do installment agreements not paid via direct debit.

    1. Establishing Installment Agreements

    The IRS allocates costs attributed to establishing installment agreements based on whether the installment agreement is a non-online installment agreement or an online payment agreement.

    a. Non-Online Installment Agreements

    For non-online installment agreements, the IRS identified the activities conducted across various organizations to establish agreements, obtained the time spent on the activities through various time tracking systems, obtained the labor and benefits rates for employees from the financial system for FY 2013 and 2014 who spent time establishing agreements, and averaged those costs to create an annualized average cost. The average labor and benefits costs to establish non-online installment agreements is $110,143,952, calculated as follows:

    Collection Field Function $53,268,552 Compliance Services Collection Operations 19,989,943 Automated Collection System 19,377,987 Customer Service Toll-Free 6,183,764 Appeals Staff Labor and Benefits 8,624,615 Field Assistance 1,894,976 Examination 804,115 Average Labor and Benefits Costs to Establish Non-Online Installment Agreements 110,143,952

    Because the non-labor costs for notices and telecommunication, which includes the costs of paper, postage and phone service, related to installment agreements can be identified, the IRS considered them to be direct costs for the installment agreement program. Accordingly, the IRS modified the calculation of the Corporate Overhead rate to exclude these notices and telecommunication costs from the total indirect costs in the calculation of the Corporate Overhead rate used for purposes of allocating Corporate Overhead to the installment agreement program (adjusted Corporate Overhead). The adjusted Corporate Overhead rate used for the entire installment agreement program is 60.89 percent, calculated as follows:

    Indirect Labor and Benefits Costs $1,693,339,843 Non-Labor Costs + 2,832,262,970 Non-Labor Costs for Notices and Telecommunication (211,959,052) Adjusted Total Indirect Costs 4,313,643,761 Direct Labor and Benefits Costs $6,872,934,473 Non-Labor Costs for Notices and Telecommunication + 211,959,052 Adjusted Direct Labor and Benefits Costs 7,084,893,526 Adjusted Total Indirect Costs 4,313,643,761 Adjusted Direct Labor and Benefits Costs + 7,084,893,526 Adjusted Corporate Overhead Rate 60.89%

    The IRS applied the adjusted Corporate Overhead rate to the labor and benefits costs to calculate the total labor and benefits cost for establishing non-online installment agreements as follows:

    Labor and Benefits Costs to Establish Non-Online Installment Agreements $110,143,952 Adjusted Corporate Overhead Rate (60.89%) 67,066,653 Total Labor and Benefits and Adjusted Overhead Costs to Establish Non-Online Installment Agreements 177,210,605

    There are also non-labor costs attributed to establishing non-online installment agreements. Because these costs are non-labor, the IRS does not allocate any overhead to determine the total costs. The total non-labor costs for establishing non-online installment agreements are $636,046, calculated as follows:

    Telecommunications $145,169 Automated Collection System 274,664 Customer Service Toll-Free 216,213 Total Non-Labor Costs to Establish Non-Online Installment Agreements 636,046

    The total costs for establishing non-online installment agreements are $177,846,650, calculated as follows:

    Total Labor and Benefits and Adjusted Overhead Costs to Establish Non-Online Installment Agreements $177,210,605 Total Non-Labor Costs to Establish Non-Online Installment Agreements 636,046 Total Costs to Establish Non-Online Installment Agreements 177,846,650

    To determine the unit cost to establish non-online installment agreements, the IRS divided the total cost by the average volume of non-online installment agreements. The IRS determined the volume of non-online installment agreements by averaging the volumes of new agreements entered into in FY 2013 and FY 2014. The unit cost was calculated as follows:

    Total Costs to Establish Non-Online Installment Agreements $177,846,650 Average Annual Volume 2,175,142 Unit Cost to Establish Non-Online Installment Agreements $81.76 b. Online Installment Agreements

    For online payment agreements, the only cost to establish those agreements is the cost for the online payment agreement system that allows taxpayers to set up the agreements. In FY 2014, the IRS performed a substantial enhancement to this system at a cost of $4,200,000. The IRS amortizes system enhancements over a six year period; therefore, for FY 2014 through FY 2020 the annual amortized system cost for online payment agreements is $700,000. In addition to the annual amortized cost, the IRS incurs $200,000 in annual system maintenance costs for this system. The total annual cost for the online payment agreement system is $900,000. The use of online payment agreements is trending upward and the IRS expects this upward trend to continue as more taxpayers utilize the IRS's online systems. To reflect the IRS's expectation of increased use of online systems, the IRS adjusted upward the average volume of online payment agreements received in FY 2013 and FY 2014 consistent with that expectation. The total cost to establish online payment agreements is $6, calculated as follows:

    Amortized System Upgrade $700,000 Annual System Maintenance Cost $200,000 Average Yearly System Cost $900,000 Average Annual Volume 150,000 Unit Cost to Establish Online Payment Agreement $6 2. Maintaining and Monitoring Installment Agreements

    The costs for maintaining and monitoring installment agreements consist of the costs of monitoring and telecommunications labor and benefits, an allocation of overhead to these labor costs, and notice and telecommunication non-labor costs.

    The IRS identified the activities conducted across various business units to monitor installment agreements, obtained the time spent on the activities through various time tracking systems, obtained the labor and benefits rates for these personnel from the financial system for FY 2013 and 2014, and determined the average annual cost for monitoring installment agreements.

    The IRS allocated the costs attributed to maintaining and monitoring installment agreements based on whether the agreement is a direct debit agreement (Direct Debit Installment Agreement or Direct Debit Online Payment Agreement), a non-direct debit agreement (Regular Agreement or Online Payment Agreement), or a Restructured/Reinstated Installment Agreement. The following sections describe the costs allocated to various types of installment agreements for maintaining and monitoring.

    The IRS continuously monitors all installment agreements for accounts not meeting the terms of the agreement, for returned payments, and various other circumstances that result in a need to contact the taxpayer. When these circumstances arise, the IRS reviews the account and sends a notice to the taxpayer, as needed, to resolve the condition. The IRS maintains a system that measures the hours of correspondence labor by type of notice sent to taxpayers.

    Generally, the IRS uses the costs for two years and averages those costs to determine the cost of an activity. However, for this component of cost, the IRS used existing data for the hours spent in FY 2014 on correspondence labor related to monitoring installment agreements and calculated total labor and benefits for those hours. The IRS does not believe including an additional year of data would result in a significant difference in the result. In the future, the IRS intends to use the average cost of two years to calculate this cost component. The total annual cost of correspondence for monitoring agreements labor and benefits is $5,807,847.

    The IRS divided the total annual labor and benefits cost of correspondence for monitoring agreements by the total agreements in inventory at the end of FY 2014. The total inventory was 3,973,208, resulting in annual labor and benefits cost per agreement of $1.46. The IRS converted the annual cost of correspondence for monitoring agreements labor and benefits to a per-agreement cost by dividing the annual cost per installment agreement by 12 months to calculate the monthly cost per installment agreement. The IRS then multiplied the monthly cost per installment agreement by 40.31 months, the average term of installment agreements (in months), to calculate the unit cost over the life of the installment agreement.

    Total Annual Cost of Correspondence for Monitoring Agreements Labor and Benefits $5,807,847 Total Agreements in Inventory at End of FY 2014 3,973,208 Annual Labor and Benefits Cost per Agreement $1.46 Monthly Cost Per Agreement (Annual Labor and Benefits Cost per Agreement divided by 12 months) $0.12 Average Term of Installment Agreement (in months) 40.31 Unit Cost of Correspondence for Monitoring Agreements Labor and Benefits Over the Life of Installment Agreement $4.91

    There is not a significant difference in the cost of monitoring regular and direct debit installment agreements; therefore, each type of agreement is allocated the same ratio of monitoring costs. Restructured/reinstated installment agreements are not allocated any monitoring costs because monitoring costs for restructured/reinstated agreements are recovered in the original user fee. The unit cost of correspondence for monitoring agreements labor and benefits per installment agreement is shown below:

    Regular agreement Direct debit
  • installment agreement
  • Restructured/
  • reinstated installment agreement
  • Unit Cost of Correspondence for Monitoring Agreements Labor and Benefits Over the Life of Installment Agreement $4.91 $4.91 $0

    The IRS maintains a system that calculates the number of seconds spent on the phone by type of call. To determine the telecommunications labor and benefits costs to maintain and monitor installment agreements, IRS first analyzed the time spent on phone calls related to monitoring and maintaining installment agreements, rather than establishing one. The total seconds are converted into hours and hourly salary and benefits rates are applied.

    The average labor and benefits costs for responding to installment agreement questions are $58,917,275 for FY 2013 and FY 2014. These costs are accumulated by type of installment agreement. To determine the annual unit cost per type of agreement, the IRS used the total volume of the corresponding installment agreements in inventory at the end of FY 2014 as the baseline for the number of installment agreements that generate telecommunications costs of responding to questions. The IRS divided the average labor and benefits costs separated by type of agreement by the total agreements in inventory at the end of FY 2014 for each type of agreement. The IRS converted the annual cost of correspondence for telecommunications labor and benefits to a per-agreement cost as follows:

    Non-direct debit
  • installment
  • agreement
  • Direct debit
  • installment
  • agreement
  • Restructured/
  • reinstated
  • agreement
  • Average Telecommunications Labor and Benefits Costs $55,872,940 $2,014,736 $1,029,598 Volume of Installment Agreements in Inventory at end of FY 2014 by Type 3,084,844 888,364 1,082,303 Annual Unit Cost Per Installment Agreement $18.11 $2.27 $0.95 Monthly Cost Per Installment Agreement 4 (Annual Unit Cost Per Installment Agreement divided by 12 months) $1.51 $0.19 $0.08 Average Term of Installment Agreement (in months) 40.31 40.31 40.31 Unit Cost for Telecommunications Labor and Benefits Over the Life of the Installment Agreement $60.84 $7.62 $3.20

    Next, the IRS determined the appropriate allocation of overhead for installment agreements. As noted above, the IRS adjusted the Corporate Overhead Rate for the installment agreement program down to 60.89 percent. The IRS applied this adjusted Corporate Overhead rate to the total labor and benefits costs for monitoring and telecommunications calculated above. The total labor unit cost including the adjusted Corporate Overhead allocated to each type installment agreement is as follows:

    Non-direct debit
  • installment
  • agreement
  • Direct debit
  • installment
  • agreement
  • Restructured/
  • reinstated
  • installment
  • agreement
  • Unit Cost of Correspondence for Monitoring Agreements Labor and Benefits Over the Life of Installment Agreement $4.91 $4.91 $0 Unit Cost for Telecommunications Labor and Benefits Over the Life of the Installment Agreement 60.84 7.62 3.20 Subtotal 65.75 12.53 3.20 Adjusted Corporate Overhead (60.89%) 40.03 7.63 1.95 Maintain and Monitor Labor and Benefits Unit Cost 105.78 20.16 5.15

    The final element of the cost analysis for maintaining and monitoring installment agreements is the cost of non-labor notice and telecommunications. The IRS maintains a system for tracking notices and telecommunication costs. Each type of notice has a known number of pages, postage, and telecommunication costs responding to taxpayer inquiries related to the notices. The average annual non-labor cost for all notices and telecommunication related to installment agreements is $36,219,659. The IRS divided the total average notice and telecommunication non-labor cost by the total volume of agreements in inventory at the end of FY 2014 to determine the annual notice and telecommunication non-labor cost per installment agreement. The IRS converted the annual cost of notice and telecommunications to a per-agreement cost as follows:

    Regular
  • installment
  • agreement
  • Direct debit
  • installment
  • agreement
  • Restructured/
  • reinstated
  • agreement
  • Average Annual Non-Labor Cost of All Notices $33,005,331 $1,190,147 $608,206 Average Annual Non-Labor Cost of Telecommunication $1,342,810 $48,421 $24,745 Total Average Notice and Telecommunication Non-Labor Costs $34,348,141 $1,238,568 $632,950 Total Volume of Agreements in Inventory at end of FY 2014 3,084,844 888,364 1,082,303 Annual Notice and Telecommunication Non-Labor Cost Per Installment Agreement $11.13 $1.39 $0.58 Monthly Notice and Telecommunication Non-Labor Cost Per Installment Agreement (Annual Notice and Telecommunication Non-Labor Cost divided by 12 months) $0.93 $0.12 $0.05 Average Term of Installment Agreement (in months) 40.31 40.31 40.31 Unit Cost for Notice and Telecommunication Non-Labor Over the Life of the Installment Agreement $37.40 $4.68 $1.96

    The unit costs for maintaining and monitoring an installment agreement based on the total cost of maintaining and monitoring all installment agreements are as follows:

    Non-direct debit
  • installment
  • agreement
  • Direct debit
  • installment
  • agreement
  • Restructured/
  • reinstated
  • installment
  • agreement
  • Maintain and Monitor Labor Unit Costs $105.78 $20.16 $5.15 Maintain and Monitor Non-Labor Unit Cost 37.40 4.68 1.96 Total Maintain and Monitor Unit Cost 143.18 24.84 7.11
    3. Per Unit Full Cost of Each Type of Installment Agreement

    The per unit full cost and rates per each type of installment agreement are as follows:

    Regular
  • agreement
  • Direct debit
  • installment agreement
  • Restructured/
  • reinstated
  • installment agreement
  • Direct debit online
  • payment
  • agreements
  • Online
  • payment
  • agreements
  • Unit Cost to Establish $81.76 $81.76 $81.76 $6.00 $6.00 Unit Cost to Maintain and Monitor 143.18 24.84 7.11 24.84 143.18 Per Unit Full Cost 224.94 106.60 88.87 30.84 149.18 Rate 225 107 89 31 149
    4. Low Income Installment Agreement User Fee

    The proposed regulations maintain the low-income taxpayer user fee of $43 for regular installment agreements and direct debit installment agreements and extend the low-income taxpayer user fee of $43 to restructured/reinstated installment agreements and online payment agreements. When the IRS first instituted the $43 user fee for low-income taxpayers, it determined that this amount would not unduly burden or disproportionately dissuade low-income taxpayers from seeking installment agreements. Historically, approximately one-third of all installment agreement requests have come from low-income taxpayers, a percentage that has remained relatively consistent since the introduction of the $43 low-income taxpayer rate. In light of this, the IRS has determined to maintain the existing $43 user fee for low-income taxpayers and to extend this reduced user fee to restructured/reinstated installment agreements and online payment agreements requested by low-income taxpayers. Because the full cost of direct debit online payment agreements of $31 is less than the low-income taxpayer user fee, all taxpayers will be charged the same $31 user fee for direct debit online payment agreements.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the information that follows. The economic impact of these regulations on any small entity would result from the entity being required to pay a fee prescribed by these regulations in order to obtain a particular service. The dollar amount of the fee is not, however, substantial enough to have a significant economic impact on any entity subject to the fee. Low-income taxpayers and taxpayers entering into direct debit online payment agreements will be charged a lower fee, which lessens the economic impact of these regulations. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Public Hearing

    Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments will be available at www.regulations.gov or upon request.

    A public hearing has been scheduled for October 19, 2016, beginning at 2:00 p.m. in the Main IR Auditorium of the Internal Revenue Service Building, 1111 Constitution Avenue NW., Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written comments or electronic comments by October 6, 2016 and submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (a signed original and 8 copies) by October 6, 2016. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

    Drafting Information

    The principal author of these regulations is Maria Del Pilar Puerto of the Office of Associate Chief Counsel (Procedure and Administration). Other personnel from the Treasury Department and the IRS participated in their development.

    List of Subjects in 26 CFR Part 300

    Reporting and recordkeeping requirements, User fees.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 300 is proposed to be amended as follows:

    PART 300—USER FEES Paragraph 1. The authority citation for part 300 continues to read as follows: Authority:

    31 U.S.C. 9701.

    Par. 2. In § 300.1, paragraphs (b) and (d) are revised to read as follows:
    § 300.1 Installment agreement fee.

    (b) Fee. The fee for entering into an installment agreement before January 1, 2017, is $120. The fee for entering into an installment agreement on or after January 1, 2017, is $225. A reduced fee applies in the following situations:

    (1) For installment agreements entered into before January 1, 2017, the fee is $52 when the taxpayer pays by way of a direct debit from the taxpayer's bank account. The fee is $107 when the taxpayer pays by way of a direct debit from the taxpayer's bank account for installment agreements entered into on or after January 1, 2017;

    (2) For online payment agreements entered into before January 1, 2017, the fee is $120, except that the fee is $52 when the taxpayer pays by way of a direct debit from the taxpayer's bank account. The fee is $149 for entering into online payment agreements on or after January 1, 2017, except that the fee is $31 when the taxpayer pays by way of a direct debit from the taxpayer's bank account; and

    (3) Notwithstanding the type of installment agreement and method of payment, the fee is $43 if the taxpayer is a low-income taxpayer, that is, an individual who falls at or below 250 percent of the dollar criteria established by the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services under authority of section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 357, 511), or such other measure that is adopted by the Secretary, except that the fee is $31 when the taxpayer pays by way of a direct debit from the taxpayer's bank account with respect to online payment agreements entered into on or after January 1, 2017;

    (d) Effective/applicability date. This section is applicable beginning January 1, 2017.

    Par. 3. In § 300.2, paragraphs (b) and (d) are revised to read as follows:
    § 300.2 Restructuring or reinstatement of installment agreement fee.

    (b) Fee. The fee for restructuring or reinstating an installment agreement before January 1, 2017, is $50. The fee for restructuring or reinstating an installment agreement on or after January 1, 2017, is $89. If the taxpayer is a low-income taxpayer, that is, an individual who falls at or below 250 percent of the dollar criteria established by the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services under authority of section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 357, 511), or such other measure that is adopted by the Secretary, then the fee for restructuring or reinstating an installment agreement on or after January 1, 2017 is $43.

    (d) Effective/applicability date. This section is applicable beginning January 1, 2017.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-19836 Filed 8-19-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 7 [NPS-SER-CAHA-21373; PPSECAHAS0, PPMPSPD1Z.YM0000] RIN 1024-AE33 Special Regulations; Areas of the National Park System, Cape Hatteras National Seashore—Off-Road Vehicle Management AGENCY:

    National Park Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    The National Park Service (NPS) proposes to amend its special regulation for off-road vehicle (ORV) use at Cape Hatteras National Seashore, North Carolina, to revise the times that certain beaches open to ORV use in the morning, extend the dates that certain seasonal ORV routes are open in the fall and spring, and modify the size and location of vehicle-free areas.

    Consideration of changes to this special regulation was required by section 3057 of the National Defense Authorization Act for Fiscal Year 2015.

    The NPS also proposes to amend this special regulation to allow the Cape Hatteras National Seashore to issue ORV permits that would be valid for different lengths of time than currently exist, and to replace an ORV route designation on Ocracoke Island with a park road to allow vehicle access and pedestrian use of a soundside area without the requirement for an ORV permit.

    DATES:

    Comments must be received by October 21, 2016.

    ADDRESSES:

    You may submit comments, identified by the Regulation Identifier Number (RIN) 1024-AE33, by any of the following methods:

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

    Hardcopy: Mail or hand-deliver to: Superintendent, Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, North Carolina 27954.

    For additional information see Public Participation under SUPPLEMENTARY INFORMATION below.

    FOR FURTHER INFORMATION CONTACT:

    Superintendent, Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, North Carolina 27954. Phone 252-475-9032.

    SUPPLEMENTARY INFORMATION: Background Description of Cape Hatteras National Seashore

    Situated along the Outer Banks of North Carolina, Cape Hatteras National Seashore (Seashore or park) was authorized by Congress in 1937 and established in 1953 as the nation's first national seashore. Consisting of more than thirty thousand acres distributed along approximately 67 miles of shoreline, the Seashore is part of a dynamic barrier island system.

    The Seashore contains important wildlife habitat created by dynamic environmental processes. Several species listed under the Endangered Species Act, including the piping plover, rufa subspecies of the red knot, and five species of sea turtles, are found within the park. The Seashore also serves as a popular recreation destination where users participate in a variety of activities.

    Authority and Jurisdiction To Promulgate Regulations

    In the NPS Organic Act (54 U.S.C. 100101), Congress granted the NPS broad authority to regulate the use of areas under its jurisdiction. The Organic Act authorizes the Secretary of the Interior (Secretary), acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751(a).

    Off-Road Motor Vehicle Regulation

    Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 in response to the widespread and rapidly increasing off-road driving on public lands “often for legitimate purposes but also in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity.” Executive Order 11644 was amended by Executive Order 11989 in 1977, and together they are jointly referred to in this rule as the “E.O.” The E.O. requires Federal agencies that allow motorized vehicle use in off-road areas to designate specific areas and routes on public lands where the use of motorized vehicles may be permitted. The regulations must also require that the designation of such areas and trails shall be in accordance with the following:

    (1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.

    (2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.

    (3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.

    (4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park System, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.

    The NPS regulation at 36 CFR 4.10(b) implements the E.O. and requires that routes and areas designated for ORV use be promulgated as special regulations and that the designation of routes and areas must comply with 36 CFR 1.5 and E.O. 11644. It also states that ORV routes and areas may be designated only in national recreation areas, national seashores, national lakeshores, and national preserves. This proposed rule is consistent with these authorities and with Section 8.2.3.1 (Motorized Off-road Vehicle Use) of NPS Management Policies 2006, available at: http://www.nps.gov/policy/mp/policies.html.

    Recent ORV Management at Cape Hatteras National Seashore

    In 2010, the NPS completed the Off-Road Vehicle Management Plan and Environmental Impact Statement (ORV FEIS) for ORV use at the Seashore to guide the management and use of off-road vehicles at the Seashore. As a part of the selected alternative, certain elements of the ORV FEIS were implemented through rulemaking. The Final Rule for ORV management at the Seashore was published in the Federal Register on January 23, 2012 (77 FR 3123) (2012 Final Rule).

    On December 19, 2014, the President signed the National Defense Authorization Act for Fiscal Year 2015 (2014 Act). Section 3057 of the 2014 Act requires that the Secretary of the Interior consider three specific changes to the 2012 Final Rule regarding:

    • Morning opening times of beaches that are closed to ORV use at night,

    • Extending the dates for seasonal ORV routes, and

    • The size and location of vehicle-free areas (VFAs).

    On February 17, 2016, the NPS published the Consideration of Modifications to the Final Rule for Off-Road Vehicle Management Environmental Assessment (EA). The EA evaluated:

    • The times that beach routes open to ORV use in the mornings,

    • Extending the dates that seasonal ORV routes would be open in the fall and spring, and

    • Modifying the size and location of VFAs.

    The EA also considered:

    • Issuing ORV permits for different lengths of time,

    • Revising some ORV route designations, and

    • Providing access improvements for soundside locations on Ocracoke Island.

    The EA, which contains a full description of the purpose and need for taking action, scoping, the alternatives considered, maps and the environmental impacts associated with the project may be viewed on the NPS planning Web site at http://parkplanning.nps.gov/caha-orv-ea under the “Document List” link. Public comments on the EA were accepted until March 18, 2016. The NPS reviewed and considered the comments received on the EA when drafting this proposed rule. After the comment period closes on this proposed rule, the NPS will review the comments received on the proposed rule, complete the NEPA process, and publish a final rule.

    The Proposed Rule

    This proposed rule, pursuant to § 4.10(b), would implement the NPS preferred alternative (Alternative 2) in the EA.

    This proposed rule would amend the special regulation for ORV use at the Seashore as it relates to:

    • The morning opening times of beaches that are closed to ORV use at night,

    • The dates that seasonal ORV routes are open in the fall and spring, and

    • The size and location of VFAs.

    The proposed rule would also allow the Seashore to issue ORV permits that would be valid for different lengths of time than currently exist, and would revise the status of some ORV routes to allow vehicular access without requiring an ORV permit. This proposed rule also includes some changes made for clarification, such as updating ramp numbers to reflect current conditions. Although the preferred alternative in the EA proposed additional changes to Seashore access, only those described below require a modification to the existing special regulation.

    Beach Opening Times

    As stated in the preferred alternative in the EA, most ORV routes would continue to open to ORV use at 7:00 a.m. Certain “priority” beach routes could be opened to ORV use earlier than 7:00 a.m., though no earlier than 6:00 a.m. The NPS proposed this change so that ORV users could access the more popular beaches earlier than 7:00 a.m. NPS resource staff would patrol these “priority” beaches before opening so that park resources would be protected even while earlier access is allowed. The NPS is proposing to amend the special regulation at 36 CFR 7.58(c)(12) to state that the priority beaches would open no earlier than 6:00 a.m. Instead of establishing an opening time in the special regulation, beach opening times would be published annually in the Superintendent's Compendium. The proposed rule also slightly edits some of this language for clarity. Moving the beach opening times from the regulation to the Compendium would give the Superintendent some flexibility based on changing conditions at the Seashore and the ability of park staff to patrol and complete resource management inventories on beaches before they are opened to vehicle use.

    Dates for Use of Seasonal ORV Routes

    The proposed rule would extend the dates for ORV use of seasonally designated routes in front of the villages of Rodanthe, Waves, Salvo, Avon, Frisco, and Hatteras and the Ocracoke Campground by two weeks in the fall and two weeks in the spring, making these seasonal routes open to ORV use from October 15 through April 14. This extension is proposed in areas and at times of the year which would not result in measureable impacts to sensitive wildlife, visitor experience, safety, or workload complexity of park staff.

    Size and Location of VFAs

    The proposed rule would modify the size and location of VFAs and improve access in some locations. Ramps 2.5 and 59.5 would not be constructed. Ramp 2 would be restored to ORV use, extending the existing ORV route 0.5 miles to the north and providing ORV access to the route from either ramp 4 or ramp 2. Ramp 59 would continue to be open to ORV use, extending the existing year-round ORV route approximately 0.5 miles. The seasonal ORV route at ramp 34 would be extended 1 mile to the north and the seasonal ORV route at ramp 23 would be extended 1.5 miles to the south. The NPS proposes making changes to these particular VFAs because it would slightly increase ORV access on each of the islands without measurably impacting visitor experience, safety, sensitive wildlife species, or workload complexity of park staff.

    Permit Durations

    The NPS is proposing to remove the specific times established for the duration of ORV permits from the special regulation at § 7.58(c)(2)(iv), and instead control the duration of the permits through the Superintendent's Compendium. As described in the preferred alternative in the EA, existing annual ORV permits would change from being valid for the calendar year of issuance to being valid for one year from the date of issuance. Also, the existing 7-day ORV permit would be replaced by a 10-day ORV permit. Also, changing to a 10-day ORV permit from a 7-day ORV permit could allow many ORV users to access the beaches over two weekends, depending upon when they arrive at the Seashore.

    Any future substantive changes to the duration of ORV permits would require the appropriate NEPA compliance.

    The NPS intends to continue to recover the costs of administering the ORV permit program under 54 U.S.C. 103104. This requirement will remain in the proposed rule.

    Access Improvements—Ocracoke Island

    The existing ORV route designation along Devil Shoals Road (also referred to as Dump Station Road) would be removed. No ORV permit would be required to access this location as it would be designated a park road instead of an ORV route. This is an existing dirt road located across North Carolina State Highway 12 from the Ocracoke campground that has been maintained as part of the park's road network. This road meets NPS road design standards as a Class II connector road that provides normal passenger vehicle access to park areas of scenic and recreational interest with a surface type of dirt/gravel. The NPS proposed these changes to allow for limited vehicular soundside access on Ocracoke Island without the requirement to purchase an ORV permit. Unlike the other islands at the Seashore, there is currently no vehicular access to the soundside of Ocracoke Island available without an ORV permit.

    Access Improvements—Hatteras Island

    The NPS proposes to extend the existing Cape Point bypass route south of ramp 44 by 0.4 miles to the north so that it would join with ramp 44. The NPS is also proposing to extend the existing bypass route by approximately 600 feet to the south. Although this southern extension was not originally part of the preferred alternative in the EA, impacts associated with this proposed 600-foot extension would be similar in nature to those disclosed in the EA for the 0.4-mile extension to the north. As concluded in the EA, impacts associated with the bypass route extension would be negligible at most and would have no impact to wetlands. The NPS proposes extending this existing bypass to provide additional ORV access near Cape Point when the ORV route along the beach is closed for safety or resource protection.

    Other Updates

    Several changes to the language in the existing rule are proposed for clarification or to reflect existing conditions. Ramp 25.5 is renamed “ramp 25”; ramp 32.5 is renamed “ramp 32”; ramp 47.5 is renamed “ramp 48”; the soundside ORV route at Little Kinnakeet would be changed to begin just west of the Kinnakeet lifesaving structures; and additional details are added to further clarify where existing routes terminate (e.g. the routes adjacent to ramps 63, 48, and 32 do not end exactly at the ramp).

    Maps

    The proposed changes to routes and ramps are depicted on the maps in the EA (pages 35—41) and are available for review at http://parkplanning.nps.gov/caha-orv-ea.

    Compliance With Other Laws, Executive Orders, and Department Policy Use of Off-Road Vehicles on the Public Lands (Executive Order 11644)

    As discussed previously, the E.O. applies to ORV use on federal public lands that is not authorized under a valid lease, permit, contract, or license. Section 3(4) of E.O. 11644 provides that ORV “areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the E.O. clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” or “adverse effect” commonly used in the National Environmental Policy Act of 1969 (NEPA). Under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” refers to any effect, no matter how minor or negligible.

    Section 3(4) of the E.O., by contrast, does not prescribe procedures or any particular means of analysis. It concerns substantive management decisions, and must instead be read in the context of the authorities applicable to such decisions. The Seashore is an area of the National Park System. Therefore, the NPS interprets the E.O. term “adversely affect” consistent with its NPS Management Policies 2006. These policies require the NPS to allow only “appropriate uses” of parks and to avoid “unacceptable impacts” to park resources or values. The NPS has evaluated this proposed rule and confirmed that it would comply with these policies.

    Specifically, this rule would not impede the attainment of the Seashore's desired future conditions for natural and cultural resources as identified in the ORV FEIS. The NPS has determined this rule would not unreasonably interfere with the atmosphere of peace and tranquility, or the natural soundscape maintained in natural locations within the Seashore. Therefore, within the context of the E.O., ORV use on the ORV routes amended by this rule (which are also subject to safety and resource closures and other species management measures that would be implemented under the proposed rule) would not adversely affect the natural, aesthetic, or scenic values of the Seashore.

    Section 8(a) of the E.O. requires NPS to monitor the effects of the use of off-road vehicles on lands under its jurisdiction. On the basis of the information gathered, NPS shall from time to time amend or rescind designations of areas or other actions taken pursuant to the E.O. as necessary to further the policy of the E.O. The existing ORV FEIS and Record of Decision identify monitoring and resource protection procedures, and desired future conditions to provide for the ongoing and future evaluation of impacts of ORV use on protected resources. The Park Superintendent would have authority under this rule and under 36 CFR 1.5 to close portions of the Seashore as needed to protect park resources and values, and public health and safety.

    Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on information contained in a report entitled, “Benefit-Cost and Regulatory Flexibility Analyses: Special Regulations of Off-Road Motor Vehicles at Cape Hatteras National Seashore”, available for public review at: http://parkplanning.nps.gov/caha-orv-ea. According to that report, no entities, small or large, are directly regulated by the proposed rule, which regulates visitors' use of ORVs. The courts have held that the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates them. Therefore, agencies must assess the impacts on directly regulated entities, but are not required to analyze in a regulatory flexibility analysis the indirect effects from rules on small entities.

    Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2) of the SBREFA. This rule:

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

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

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

    Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local, or tribal governments or the private sector. The designated ORV routes are located entirely within the Seashore, and will not result in direct expenditure by State, local, or tribal governments. This rule addresses public use of NPS lands, and imposes no requirements on other agencies or governments. Therefore, a statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

    Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. Access to private property located within or adjacent to the Seashore will not be affected, and this rule does not regulate uses of private property. Therefore, a takings implication assessment is not required.

    Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects use of NPS-administered lands and imposes no requirements on other agencies or governments. A federalism summary impact statement is not required.

    Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

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

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

    Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

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

    Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collection of information that requires approval by Office of Management and Budget (OMB) under the PRA of 1995. OMB has approved the information collection requirements associated with NPS Special Park Use Permits and has assigned OMB Control Number 1024-0026 (expires 08/31/2016). An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act (NEPA)

    In accordance with NEPA, the NPS prepared an Environmental Assessment (EA), which was released for public comment on February 17, 2016, for 30 days. A full description of the alternatives that were considered, the environmental impacts associated with the project, public involvement, and other supporting documentation, can be found online at http://parkplanning.nps.gov/caha-orv-ea. The NPS considered public comments made on the EA in drafting this proposed rule. The NPS will evaluate substantive comments received on the proposed rule when developing the decision and the Final Rule.

    Effects on the Energy Supply (Executive Order 13211)

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

    Clarity of This Rule

    We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

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

    (c) Use clear language rather than jargon;

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

    (e) Use lists and tables wherever possible.

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

    Public Participation

    All submissions received must include the agency name and Regulatory Identifier Number (RIN) for this rulemaking, 1024-AE33. All comments received through the Federal eRulemaking portal at http://www.regulations.gov will be available without change. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information, we cannot guarantee that we will be able to do so. To view comments received through the Federal eRulemaking portal, go to http://www.regulations.gov and enter 1024- AE33 in the search box.

    Comments submitted through http://www.regulations.gov or submitted by mail must be entered or postmarked before midnight (Eastern Daylight Time) October 21, 2016 Comments submitted by hand delivery must be received by the close of business hours (5 p.m. Eastern Daylight Time) October 21, 2016.

    Comments will not be accepted by fax, email, or in any way other than those specified above, and bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted. If you commented on the EA, your comments have already been considered in drafting the proposed rule. Comments should focus on this proposed rule; comments that relate solely to the EA will be untimely and will not be considered.

    Drafting Information

    The primary authors of this regulation were Russel J. Wilson, Chief Regulations, Jurisdiction and Special Park Uses, National Park Service; and, A.J. North, Regulations Coordinator, National Park Service.

    List of Subjects in 36 CFR Part 7

    District of Columbia, National Parks, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:

    PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM 1. The authority citation for part 7 continues to read as follows: Authority:

    54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also issued under DC Code 10-137 and DC Code 50-2201.07.

    2. In § 7.58, revise paragraphs (c)(2)(iv), (c)(9) and (c)(12)(i) to read as follows:
    § 7.58 Cape Hatteras National Seashore.

    (c) * * *

    (2) * * *

    (iv) ORV permits are valid for the dates specified on the permit. The public will be notified of any proposed changes to ORV permit durations through one or more of the methods listed in § 1.7(a) of this chapter.

    (9) ORV routes. The following tables indicate designated ORV routes. The following ramps are designated for off-road use to provide access to ocean beaches: 2, 4, 23, 25, 27, 30, 32, 34, 38, 43, 44, 48, 49, 55, 59, 63, 67, 68, 70, and 72. Designated ORV routes and ramps are subject to resource, safety, seasonal, and other closures implemented under § 7.58(c)(10).

    (i) Soundside ORV access ramps are described in the table below. For a village beach to be open to ORV use during the winter season, it must be at least 20 meters (66 feet) wide from the toe of the dune seaward to mean high tide line.

    (ii) Maps showing designated routes and ramps are available in the Office of the Superintendent and on the Seashore Web site.

    Bodie Island—Designated Routes Year Round Ramp 2 to 0.2 miles south of ramp 4. Seasonal: Open September 15 through March 14 0.2 miles south of ramp 4 to the eastern confluence of the Atlantic Ocean and Oregon Inlet. Hatteras Island—Designated Routes Year Round 1.5 miles south of ramp 23 to ramp 27. Ramp 30 to approximately 0.3 miles south of ramp 32. The following soundside ORV access routes from NC Highway 12 to Pamlico Sound between the villages of Salvo and Avon: Soundside ramps 46, 48, 52, 53, 54. The soundside ORV access at Little Kinnakeet would start just to the west of the Kinnakeet lifesaving structures and would continue to the sound. Ramp 38 to 1.5 miles south of ramp 38. The following soundside ORV access routes from NC Highway 12 to Pamlico Sound between the villages of Avon and Buxton: Soundside ramps 57, 58, 59, and 60. 0.4 miles north of ramp 43 to Cape Point to 0.3 miles west of “the hook.” Bypass which extends due south from the opening at ramp 44, running continuously behind the dunes until the bypass connects with the beach. Interdunal route (“Inside Road”) from intersection with Lighthouse Road (i.e. ramp 44) to ramp 49, with one spur route from the interdunal route to ramp 48. Just east of Ramp 48 to east Frisco boundary. A soundside ORV access route from Museum Drive to Pamlico Sound near Coast Guard Station Hatteras Inlet. Pole Road from Museum Drive to Spur Road to Pamlico Sound, with one spur route, commonly known as Cable Crossing, to Pamlico Sound and four spur routes to the ORV route below. Ramp 55 southwest along the ocean beach for 1.6 miles, ending at the intersection with the route commonly known as Bone Road. Seasonal: Open to ORV use October 15 through April 14 0.1 mile south of Rodanthe Pier to 1.5 mile south of ramp 23.
  • 1.0 mile north of ramp 34 to ramp 38 (Avon).
  • East Frisco boundary to west Frisco boundary (Frisco village beach).
  • East Hatteras boundary to ramp 55 (Hatteras village beach). Ocracoke Island—Designated Routes Year Round Ramp 59 to just southwest of ramp 63. Routes from NC Highway 12 to Pamlico Sound located north of the Pony Pens, commonly known as Prong Road, Barrow Pit Road, and Scrag Cedar Road. 1.0 mile northeast of ramp 67 to 0.5 mile northeast of ramp 68. 0.4 miles northeast of ramp 70 to Ocracoke inlet. From ramp 72 to a pedestrian trail to Pamlico Sound, commonly known as Shirley's Lane. Seasonal: October 15 through April 14 0.5 mile northeast of ramp 68 to ramp 68 (Ocracoke Campground area). Seasonal: September 15 through March 14 A route 0.6 mile south of ramp 72 from the beach route to a pedestrian trail to Pamlico Sound.
  • A route at the north end of South Point spit from the beach route to Pamlico Sound.
  • (12) Night-Driving Restrictions/Hours of ORV Operation.

    (i) Hours of operation and night-driving restrictions are listed in the following table:

    Hours Of Operation/Night Driving Restrictions November 16-April 30 All designated ORV routes are open 24 hours a day. May 1-September 14 Designated ORV routes in sea turtle nesting habitat (ocean intertidal zone, ocean backshore, dunes) are closed at 9 p.m. and open no earlier than 6:00 a.m. The Seashore will publish exact opening times on an annual basis. September 15-November 15 Designated ORV routes in sea turtle nesting habitat (ocean intertidal zone, ocean backshore, dunes) are closed at 9 p.m. and open no earlier than 6:00 a.m., but the Superintendent may open designated ORV routes, or portions of the routes, 24 hours a day if no turtle nests remain. The Seashore will publish exact opening times on an annual basis.
    Dated: August 4, 2016. Michael Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-19844 Filed 8-19-16; 8:45 am] BILLING CODE 4310-EJ-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0642; FRL-9950-90-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Minor New Source Review Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve the state implementation plan (SIP) revision submitted by the Commonwealth of Virginia on July 15, 2013 pertaining to preconstruction permitting requirements under Virginia's minor New Source Review (NSR) program. In the Rules and Regulations 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. Additionally, a more detailed description of the state submittal and EPA's evaluation is included in a technical support document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document or is also available electronically within the Docket for this rulemaking action at www.regulations.gov. If no adverse comments are received in response to this action, 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.

    DATES:

    Comments must be received in writing by September 21, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2015-0642 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 Talley, (215) 814-2117, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please see the information provided in the direct final action, with the same title, that is located in the Rules and Regulations section of this Federal Register publication.

    Dated: August 9, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-19768 Filed 8-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2016-0285; A-1-FRL-9951-07-Region 1] Air Plan Approval; New Hampshire; Rules for Reducing Particulate Emissions AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of New Hampshire on March 31, 2011 and on July 23, 2013. These SIP revisions establish particulate matter (PM) and visible emissions (VE) standards for the following sources: foundries, smelters, and investment casting operations; hot mix asphalt plants; and sand and gravel sources, non-metallic mineral processing plants, and cement and concrete sources. In addition, EPA is proposing to approve a part of a SIP revision submitted by New Hampshire on March 12, 2003 that establishes procedures for testing opacity of emissions (i.e., VE). This action is being taken under the Clean Air Act.

    DATES:

    Written comments must be received on or before September 21, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2016-0285 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:

    Alison C. Simcox, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912; (617) 918-1684; [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. Background and Purpose II. EPA's Evaluation of New Hampshire's SIP Revisions III. Proposed Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background and Purpose

    On March 31, 2011, New Hampshire Department of Environmental Services (NH DES) submitted a State Implementation Plan (SIP) revision, which included a regulation entitled “Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources” (New Hampshire Code of Administrative Rules Chapter (Env-A 2800)).

    On July 23, 2013, NH DES submitted SIP revisions which included the following three regulations: “Particulate Matter and Visible Emissions Standards” (Env-A 2100); “Ferrous and Non-Ferrous Foundries, Smelters, and Investment Casting Operations” (Env-A 2400); and “Hot Mix Asphalt Plants” (Env-A 2700).

    The four submitted regulations (Env-A 2100, 2400, 2700, and 2800) state that opacity shall be determined in accordance with test methods established in Env-A 807. On March 12, 2003, the NH DES submitted Env-A 800, “Testing and Monitoring Procedures,” which included Part Env-A 807. On November 5, 2012, EPA approved Env-A 800 as submitted in March 2003 and revised on July 9, 2007. Although the March 2003 submittal included Env-A 807, the July 2007 submittal did not. The November 2012 approval did not take action with regard to Env-A 807. See 77 FR 66388. Therefore, Env-A 807 submitted on March 12, 2003 is still pending before EPA.

    Two of the submitted regulations (Env-A 2100 and 2400) included affirmative defense provisions for malfunction, which is defined as a sudden and unavoidable breakdown of process or control equipment. The New Hampshire regulations were submitted to EPA after EPA issued a start-up, shut-down, and malfunction (SSM) SIP Call proposal in February 2013 (78 FR 12460), which would have allowed narrowly drawn affirmative defense provisions in SIPs for malfunction. However, following issuance of our SIP Call proposal, a federal court ruled that the Clean Air Act precludes authority of the EPA to create affirmative defense provisions. EPA, therefore, believes that it cannot approve affirmative defense provisions in SIP submissions, even narrowly tailored ones for periods of malfunction (See NRDC v EPA, 749 F.3d 1055 (D.C. Circuit 2014)). As a result of the court decision, we issued a supplemental notice of proposed rulemaking (SNPR) on September 17, 2014 (79 FR 55920) that rescinded our previous February 2013 proposal to allow narrowly tailored affirmative defense provisions for malfunction to be included in SIPs. Therefore, on April 13, 2016, NH DES sent a letter to EPA withdrawing the affirmative defense provisions in Chapter Env-A 2100 and 2400 (i.e., 2103.03, and 2405).

    After reviewing NH DES's SIP submittals for Env-A 807, 2100, 2400, 2700, 2800 and the letter withdrawing the affirmative defense provisions in Env-A 2100 and 2400, EPA is proposing to approve all of the SIP revisions without the withdrawn portions, and is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.

    II. EPA's Evaluation of New Hampshire's SIP Revisions

    On March 12, 2003, NH DES submitted NH Code of Administrative Rules Chapter Env-A 807 for approval into the New Hampshire SIP. Env-A 807 establishes procedures for testing opacity of emissions (i.e., visible emissions) from stationary sources, and from small boilers and emergency generators. Env-A 807 also establishes testing requirements for diesel engines in motor vehicles as well as procedures for determining opacity from fugitive emissions. Env-A 807 is not currently part of the federally-approved New Hampshire SIP. Four regulations that we are proposing to approve herein (Env-A 2100, 2400, 2700, and 2800) rely on use of test methods given in Env-A 807. Based on a review of Env-A 807, EPA has determined that the test procedures are appropriate and is proposing to approve Env-A 807 into the New Hampshire SIP.

    On March 31, 2011, NH DES submitted Env-A 2800 (Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources) for approval into the New Hampshire SIP. This rule is not currently part of the federally-approved New Hampshire SIP.

    Env-A 2800 sets standards for VE and PM emissions and fugitive-dust requirements for sand and gravel sources, non-metallic mineral processing plants, and cement and concrete sources. In addition, it establishes permit-by-notification (PBN) requirements for non-metallic mineral processing plants to replace the General State Permit (GSP) option. For all sources subject to Env-A 2800, visible fugitive emissions or visible stack emissions must not exceed 20-percent opacity for any continuous 6-minute period, and all sources are required to control emissions of dust from vehicular movement within plant property boundaries. This rule will benefit public health and the environment by controlling PM emissions and visible emissions from a variety of sources. Therefore, EPA is proposing to approve Env-A 2800 into the New Hampshire SIP.

    On July 23, 2013, NH DES submitted Env-A 2100 (Particulate Matter and Visible Emissions Standards), Env-A 2400 (Ferrous and Non-Ferrous Foundries, Smelters, and Investment Casting Operations), and Env-A 2700 (Hot Mix Asphalt Plants) for approval into the New Hampshire SIP.

    Env-A 2100 establishes emission standards for existing and new stationary sources or devices that emit particulate matter to the ambient air through a stack or through an exhaust and ventilation system. This rule is not currently part of the federally-approved New Hampshire SIP. Depending on the process weight rate (0.025 to 1,000 tons per hour (tph)), the PM emission standard in Env-A 2100 for “new devices” ranges from 0.36 to 77.6 pounds per hour (lbs/hr), and for “existing devices” from 0.43 to 93.11 lbs/hr. In addition, Env-A 2100 sets allowable visible emissions for stationary sources or devices at 20 percent opacity for any continuous 6-minute period. This rule will benefit public health and the environment by controlling PM emissions from certain stationary sources. Therefore, EPA is proposing to approve Env-A 2100 into the New Hampshire SIP.

    Env-A 2400 establishes emission standards for ferrous and non-ferrous foundries, smelters, and investment casting operations. This rule is not currently part of the federally-approved New Hampshire SIP. For existing foundries (installed before or on May 12, 1971) and new ferrous foundries (installed after May 12, 1971), PM emission standards in Env-A 2400 are the same as those given for existing and new sources and devices in Env-A 2100. The standards are the same for non-ferrous foundries, smelters, and investment casting operations. However, for these non-ferrous facilities and operations, “existing” is defined as before or on February 18, 1972, and “new” is defined as after February 18, 1972. In addition, for any ferrous foundry installed or modified after June 15, 1974, PM emissions must not exceed 50 milligrams per dry standard cubic meter (mg/dscm) or 0.022 grains/dscf. For all facilities covered under Env-A 2400, allowable visible emissions are set at 20 percent opacity for any continuous 6-minute period. This rule will benefit public health and the environment by controlling PM emissions from foundries, smelters, and investment casting operations. Therefore, EPA is proposing to approve Env-A 2400 into the New Hampshire SIP.

    Env-A 2700 establishes emission standards for hot mix asphalt plants. The PM emission standard is set at 90 mg/dscm or 0.04 grains/dscf, which is the same standard as in the federal Standards of Performance for Hot Mix Asphalt Facilities (40 FR 46259). In addition, visible fugitive emissions or visible stack emissions must not exceed an average of 20 percent opacity for any continuous 6-minute period. On August 22, 2012, EPA approved one provision of Env-A 2700, which was part of a SIP revision submitted by New Hampshire on January 28, 2005. See 77 FR 50651. This provision, Env-A 2703.02(a), states that “The owner or operator of a hot mix asphalt plant shall not cause or allow visible fugitive emissions or visible stack emissions to exceed an average of 20 percent opacity for any continuous 6-minute period.” NH DES withdrew the remaining parts of the January 2005 SIP submittal on July 23, 2013, when it submitted the version of Env-A 2700 that is addressed herein. In the July 23, 2013 submission, SIP-approved Env-A 2703.02(a) has been renumbered Env-A 2702.02(a). This rule will benefit public health and the environment by reducing emissions from hot mix asphalt plants. Also, by approving the July 23, 2013 submission of Env-A 2700 in its entirety, the existing provision limiting visible emissions will be retained in the New Hampshire SIP, thus meeting the requirements of section 110(l) of the CAA. Therefore, EPA is proposing to approve Env-A 2700 into the New Hampshire SIP.

    EPA's review of the SIP submittals indicate that all concerns that EPA has expressed to NH DES about these state regulations have been adequately addressed. Concerns on the July 23, 2013 submittals were all in regard to affirmative defense provisions for malfunctions contained in Env-A 2100 and 2400. To address our concerns, NH DES submitted a letter withdrawing these provisions from Env-A 2100 and 2400. See letter to EPA dated July 8, 2013, available in the docket for today's action. The other regulations that we are proposing to approve herein (Env-A 807, 2700, and 2800) do not, even as a matter of state law, contain exceptions for SSM periods or affirmative defense provisions.

    III. Proposed Action

    EPA is proposing to approve, and incorporate into the New Hampshire SIP, four regulations and part of one regulation, except for affirmative defense provisions in two of the regulations which NH DES has withdrawn. The four regulations include one regulation submitted by the State of New Hampshire on March 31, 2011, Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources (Env-A 2800), effective October 1, 2010; and three regulations submitted on July 23, 2013, Particulate Matter and Visible Emissions Standards (Env-A 2100), effective April 23, 2013; Ferrous and Non-Ferrous Foundries, Smelters, and Investment Casting Operations (Env-A 2400), effective April 23, 2013; and Hot Mix Asphalt Plants (Env-A 2700), effective February 16, 2013. As noted earlier, the affirmative defense provisions, which NH DES has withdrawn from its SIP submittals, are not included in this proposed approval action and are contained in state law only in Env-A 2103.03 and 2405. EPA is also proposing to approve Env-A 807 (“Testing for Opacity of Emissions”), effective October 31, 2002.

    EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.

    IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the New Hampshire Code of Administrative Rules stated in section III above. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office.

    V. 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 proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 (Public Law 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).

    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: August 9, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2016-19869 Filed 8-19-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 9 [Docket ID FEMA-2015-0006] Guidance for Implementing the Federal Flood Risk Management Standard AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Notice of availability; request for comments.

    SUMMARY:

    The Federal Emergency Management Agency (FEMA) is accepting comments on the proposed guidance for implementing the Federal Flood Risk Management Standard (FFRMS).

    DATES:

    Comments must be received by October 21, 2016.

    ADDRESSES:

    Comments must be identified by Docket ID: FEMA-2015-0006 and may be submitted by one of the following methods:

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

    Mail: Regulatory Affairs Division, Office of the Chief Counsel, Federal Emergency Management Agency, Room 8NE-1604, 500 C Street SW., Washington, DC 20472-3100.

    The proposed guidance may be found at http://www.regulations.gov, using Docket ID FEMA-2015-0006. Members of the public without internet access may request a copy of the policy from using the information in the FOR FURTHER INFORMATION CONTACT section of this notice.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Fontenot, Director, Office of Environmental Planning and Historic Preservation, Federal Insurance and Mitigation Administration, DHS/FEMA, 400 C Street SW., Suite 313, Washington, DC 20472-3020, 202-646-2741.

    SUPPLEMENTARY INFORMATION:

    FEMA is separately publishing in this issue of the Federal Register a notice of proposed rulemaking that proposes revisions to 44 CFR part 9, Floodplain Management and Protection of Wetlands. As proposed, the notice of proposed rulemaking would revise 44 CFR part 9 to implement the Federal Flood Risk Management Standard (FFRMS). FEMA is proposing to issue a policy supplementary to the proposed changes to 44 CFR part 9, to provide further guidance on how FEMA intends to implement the FFRMS.

    If finalized as proposed, the policy would provide specific guidelines to implement the FFRMS for FEMA Federally Funded Projects, which are actions involving the use of FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility. The policy would select the use of the FFRMS-Freeboard Value Approach to establish the elevation and FFRMS floodplain for FEMA Federally Funded Projects that are non-critical actions. For FEMA Federally Funded Projects that are critical actions, the policy would select the use of the FFRMS-Freeboard Value Approach to establish the minimum FFRMS elevation and floodplain for critical actions. The policy would allow optional use of the FFRMS-Climate-Informed Science Approach to establish the elevation and FFRMS floodplain for critical actions, but only if the elevation established under the FFRMS-Climate-Informed Science Approach is higher than the elevation established under the FFRMS-Freeboard Value Approach. The policy would also encourage early coordination when multiple Federal agencies are jointly engaged in an action to ensure a consistent approach to determine which floodplain determination is applied.

    Authority:

    Executive Order 11988, Floodplain Management, as amended and implementing regulations at 44 CFR part 9.

    Dated: August 15, 2016. W. Craig Fugate, Administrator, Federal Emergency Management Agency.
    [FR Doc. 2016-19809 Filed 8-19-16; 8:45 am] BILLING CODE 9111-66-P
    FEDERAL MARITIME COMMISSION 46 CFR Parts 530 and 531 [Docket No. 16-05] RIN 3072-AC53 Amendments to Regulations Governing Service Contracts and NVOCC Service Arrangements AGENCY:

    Federal Maritime Commission.

    ACTION:

    Notice of Proposed Rulemaking.

    SUMMARY:

    The Federal Maritime Commission (FMC or Commission) proposes to amend its rules governing Service Contracts and NVOCC Service Arrangements. The proposed rule is intended to update, modernize, and reduce the regulatory burden.

    DATES:

    Submit comments on or before September 23, 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 24, 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 16-05, [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/16-05.

    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. Background

    In 1984, Congress passed the Shipping Act of 1984 (the Shipping Act or the Act). 46 U.S.C. 40101 et seq., which introduced the concept of carriage under service contracts with the Federal Maritime Commission (Commission or FMC). The pricing of liner services via negotiated contracts, rather than exclusively by public tariffs, was a change that had profound effects on the liner industry. FMC regulations require all ocean freight rates, surcharges, and accessorial charges in liner trades to be published in ocean common carrier tariffs or agreed to in service contracts filed with the Commission. Contemporaneous with the filing of service contracts, carriers are also required to make available to the public a concise statement of essential terms in tariff format.

    In 1998, Congress passed the Ocean Shipping Reform Act (OSRA), amending the Shipping Act of 1984 relating to service contracts. To facilitate compliance and minimize the filing burdens on the oceanborne commerce of the United States, service contracts and amendments effective after April 30, 1999, are required by FMC regulations to be filed with the Commission in electronic format. This eliminated the regulatory burden of filing in paper format, thereby saving ocean carriers both time and money. In addition, OSRA reduced the essential terms that had to be made publicly available.1 Service contracts and amendments continue to be filed into the Commission's electronic filing system, SERVCON.

    1 Prior to OSRA, contract rates were published in the essential terms tariff publication, thereby allowing similarly situated shippers to request and obtain similar terms. In enacting OSRA, Congress limited the essential terms publication to the following terms: The origin and destination port ranges, the commodities, the minimum volume or portion, and the duration.

    In 2005, the Commission issued a rule exempting non-vessel-operating common carriers (NVOCCs) from certain tariff publication requirements of the Shipping Act, pursuant to section 16 of the Shipping Act, 46 U.S.C. 40103. 69 FR 75850 (Dec. 20, 2004) (final rule). Under the exemption, NVOCCs are relieved from certain Shipping Act tariff requirements, provided that the carriage in question is performed pursuant to an NVOCC Service Arrangement (NSA) filed with the Commission and the essential terms are published in the NVOCC's tariff. 46 CFR 531.1, 531.5, and 531.9.

    On February 29, 2016, the Commission issued an Advance Notice of Proposed Rulemaking (ANPR) to elicit public comment regarding its regulations in Part 530, Service Contracts, and Part 531, NVOCC Service Arrangements. In drafting the ANPR, President Obama's Executive Order 13563 served as guidance for the Commission in seeking ways in which the regulations should be modified, expanded, or streamlined in order to make the regulations more effective, reduce the regulatory burden, encourage public participation, make use of technology, and consider flexible approaches, keeping in mind the FMC's mission, strategic goals, and regulatory responsibilities.

    Eleven sets of comments were filed in response to the ANPR, which may be found on the Commission's Web site through the link to the FMC's Electronic Reading Room, above. Comments were received from Ascend Performance Materials; CEVA Freight LLC as agents for and on behalf of Pyramid Lines; Crowley Latin American Services, LLC, and Crowley Caribbean Service, LLC (Crowley); Global Maritime Transportation Services, Inc. (GMTS); Global Shippers Association; the National Customs Brokers and Forwarders Association of America, Inc. (NCBFAA); Oceaneering International Inc.; Shintech Inc.; UPS Ocean Freight Services, Inc., UPS Europe SPRL, UPS Asia Group Pte. Ltd. and UPS Supply Chain Solutions, Inc. (collectively, UPS); Unitcargo Container Line, Inc., and the World Shipping Council (WSC). Earlier, comments submitted in response to the Commission's Plan for Retrospective Review of Existing Rules pertaining to the subject rulemaking were filed by the NCBFAA and a group of major ocean carriers.2 Those comments are also posted to the Commission's Web site under Docket No. 16-05. The comments received thus far represent a broad swath of industry stakeholders, including vessel-operating common carriers (VOCCs), a major trade association, a tariff publishing and contract management firm, licensed NVOCCs and freight forwarders, registered foreign based NVOCCs, beneficial cargo owners (BCOs) and a shippers' association.

    2 The commenting carriers consisted of thirty ocean carriers participating in the following agreements active at that time: the fourteen members of the Transpacific Stabilization Agreement; ten members of the Westbound Transpacific Stabilization Agreement; the six members of the Central America Discussion Agreement; the eleven members of the West Coast of South America Discussion Agreement; the five members of the Venezuela Discussion Agreement; three members of the ABC Discussion Agreement; the six members of the United States Australasia Discussion Agreement; and the three members of the Australia and New Zealand-United States Discussion Agreement.

    II. Discussion

    Below, on a section-by-section basis, is a discussion of issues on which the Commission requested public comment regarding the regulations governing service contracts and NSAs in 46 CFR parts 530 and 531, respectively.

    Part 530—Service Contracts Subpart A—General Provisions § 530.3 Definitions § 530.3 Affiliate

    The Commission proposes adding a definition of affiliate in this section to provide clarity as well as consistency throughout the Commission's rules. FMC regulations currently define the term affiliate in the NVOCC Service Arrangements rules at § 531.3(b) as two or more entities which are under common ownership or control by reason of being parent and subsidiary or entities associated with, under common control with, or otherwise related to each other through common stock ownership or common directors or officers.3

    3 This definition also currently exists in the rules governing NVOCC Negotiated Rate Arrangements (NRAs). See § 532.3(e).

    Comments received from the WSC, and separately from Crowley, as a member of the WSC, have no objection to the Commission's proposal to adopt with respect to service contracts, the foregoing definition of affiliate used in the NSA regulations. The WSC further asks that the Commission clarify that the adoption of the definition “does not preclude more specific definitions of that term in service contracts or tariffs, so long as those more specific definitions fall within the scope of the Commission's definition.” As one example, the WSC opines that it would not foresee the Commission objecting to the inclusion in a service contract of a minimum level of common ownership between two shipper entities asking to be considered affiliates. The Commission does not presently object to an individual carrier narrowing the proposed definition of affiliate in its service contracts as described in the WSC's example.

    UPS objects to adding the definition of affiliate to this Part and, instead, states that “the opposite course—removing the corporate ownership and control restriction for both VOCC Service Contracts and NVOCC NSAs—would be far more beneficial to commerce and competitiveness in the logistics industries.” UPS further states that “there is no apparent benefit to anyone from restricting shipper `affiliates' in NSAs to entities under common ownership and control.” UPS notes that VOCC service contracts are not subject to the same corporate ownership restrictions for affiliates as NVOCCs under NSAs, which allows VOCCS to include as affiliates in their contracts various partners in the supply chain, such as buyers and suppliers, while NVOCCs may not. UPS believes that there should be an “equal playing field” between NVOCCs and VOCCs with respect to affiliates and suggests that removing the corporate ownership restriction rather than applying it to both NVOCCs and VOCCs would be the better approach.

    GMTS has several concerns regarding the proposed definition of affiliate that were not addressed in the ANPR, namely: (1) whether existing contracts that do not comply will be grandfathered in, and if so, whether there would be limitations on extending those contracts' termination dates; (2) whether, if the Commission determines to add the proposed definition of affiliate, it would also consider adding the definition of shippers' association; and (3) asks how the Commission will address currently effective service contracts between a VOCC and multiple NVOCCs that are not affiliated under the proposed definition and are not part of an association.

    While UPS, an NVOCC and freight forwarder, cites a perceived VOCC advantage gained by not having shipper affiliates restricted to common ownership or control in service contracts, in contrast, the WSC, which is comprised of ocean carriers representing approximately 90% of global liner vessel capacity, does not object to adding the proposed definition of affiliate to service contract regulations, noting that “the proposed definition is consistent with definitions that are often included in service contracts (either directly or through incorporation of proposed tariff definitions).” The advantage that VOCCs have over NVOCCs as a result of this inconsistent requirement seems unclear, given WSC's position and further request for clarification that any imposition of a minimum ownership percentage by a VOCC with respect to an affiliate in a service contract would not conflict with the proposed definition, should it be added.

    Over the years, Commission staff has been contacted regularly by VOCCs with issues and questions stemming from a lack of clarity regarding appropriate criteria for affiliates participating in service contracts. Regulated entities have noted the existence of the definition of affiliate in both the NSA rules at § 531.3(b) and the NRA rules at § 532.3(e), along with the omission of the identical definition in the service contract regulations, and have expressed confusion with this disparate treatment. This rulemaking seeks to address this dissimilarity, as the consistent application of regulatory requirements contributes to a more efficient regulatory process and therefore, absent evidence of harm to shippers or an undue regulatory burden on carriers, is in the Commission's interest.

    While the Commission believes that the consistent application of common ownership or control criteria in determining whether two companies are affiliated lends validity to the concept of affiliation with respect to a shipper's status under a service contract or NSA, it does not propose to include a specific minimum ownership percentage in the definition of affiliate. The proposed definition in this section is broad enough to allow individual VOCCs the ability to stipulate a minimum ownership percentage at the service contract or tariff level, and ensures consistency with the definition in the Commission's rules governing NSAs in Part 531 and NRAs in Part 532.

    Similarly, another government agency, the Securities and Exchange Commission, 17 CFR 230.405, defines an affiliate, of, or person affiliated with, a specified person, as a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.

    § 530.3(i) Effective Date

    FMC regulations require that a service contract or amendment cannot become effective prior to its filing with the Commission. In the ANPR, the Commission sought comment on whether it should amend the definition of effective date with respect to service contract amendments to allow the effective date of amendments to be prior to the filing date of the amendment.

    In its comments, WSC stated that this change would “remove a regulatory obstacle to the timely implementation of commercial terms to which the shipper and the carrier have agreed.” WSC notes that, not only are there over 500,000 service contract amendments filed annually, but filing activity surges during peak periods, and the current requirement delays implementation of agreed upon-terms. The WSC urges the Commission to move promptly toward finalizing a rule to implement this change. Crowley, which endorses the WSC comments, also states that it enthusiastically supports the Commission allowing service contract amendments to be filed up to 30 days after the terms of the amendment are agreed upon with the shipper.

    Shintech Inc., a beneficial cargo owner (BCO), supports the proposed change to allow service contract amendments to be effective upon agreement of the parties with the filing occurring up to 30 days later. If finalized, Shintech states that this proposed rule change “would provide our industry with much needed modifications to a system that no longer reflects the practical needs of maritime commerce.” Two other BCOs, Ascend Performance Materials and Oceaneering International Inc. also support a 30-day grace period for filing service contract amendments, as does Global Shippers Association. CEVA, an agent for registered foreign NVOCC Pyramid Lines, supports allowing up to 30 days after agreement of the parties for amendments to both service contracts and NSAs to be filed with the Commission.

    Unitcargo Container Line, Inc., a licensed NVOCC, “applauds” the Commission's efforts to review and simplify its regulations relating to service contracts and NSAs. Unitcargo believes that the proposed changes to the regulations relating to the periods of time within which ocean carriers and NVOCCs may file amendments and corrections to service contracts and NSAs, would undoubtedly reduce the associated regulatory burdens and lauds those changes for “making it possible for ocean carriers and NVOCCs to keep pace with the often turbulent ocean shipping marketplace.”

    UPS commended the Commission “for examining possible approaches to increase efficiency in the industry.” UPS believes that the Commission should allow service contracts, NSAs, and amendments to be filed and the corresponding essential terms to be published “within a reasonable time after the effective date, rather than in advance.” UPS explains that “[i]n many instances, shippers approach carriers with potential business opportunities that involve complex arrangements, including transactions covering multiple levels of a supply chain.” UPS emphasizes that “[i]t is critical to the shippers and carriers to be able to implement these arrangements rapidly, in order to assist the U.S. exporter or supply chain manager to meet competitive conditions or avoid port congestion.” UPS states that the requested regulatory relief “will facilitate transactions and encourage compliance, rather than incentivizing participants to try to structure transactions to avoid regulation.”

    In its comments, the NCBFAA supports the Commission's proposal to ease the service contract amendment filing requirements to allow filing up to 30 days after agreement and requests that the Commission provide that same regulatory relief to NSAs. NCBFAA, however, also believes that the relief discussed in the ANPR is not expansive enough to provide meaningful relief to NVOCCs and urges the Commission to completely eliminate its NSA essential terms publication and filing requirements.

    GMTS expressed that the current requirement that a service contract amendment must be filed with the Commission on or before its effective date “ensures that the checks and balances of the full compliance of the tariffs, contract and amendments are determined prior to their submission.” GMTS further states that “[s]hould the proposed change to amendments be permitted, it could be possible that sizeable shipments of cargo are moved prior to the determination of the amendment being fully compliant.” As an example, GMTS highlights the VOCC's need to verify that an NVOCC shipper and its affiliates are in good standing with Commission requirements, and observes that, should the VOCC only verify their status at the time of filing the amendment, the delay between implementation and filing could result in a non-compliant amendment with an NVOCC whose license has been revoked.

    The majority of commenters to the ANPR favored the Commission introducing regulatory flexibility by allowing up to 30 days for filing after an amendment to a service contract has been agreed to by the carrier and shipper. Some commenters also advocated extending that relief to original service contract filings and NSA amendments as well. The Commission is considering the potential impact of a 30-day delay in receiving service contract amendments after their implementation, in light of its investigative needs and oversight responsibilities and seeks to balance those against any regulatory burden that might be imposed by the requirement.

    The existing regulations protect the shipper's interests by demonstrating the agreement of the parties prior to the movement of the cargo. Shippers have expressed confidence in this process knowing that both the shipper and carrier will honor the commitment of their service contract filed with the FMC. The Commission notes a distinction between an original service contract filing and an amendment to a contract. An original service contract is a comprehensive agreement between the parties that encompasses the commodities that are to be shipped, the origins and destinations between which cargo is to move, the rates for the transportation of that cargo, as well as terms and conditions governing the transportation of goods for the shipper. Amendments to service contracts, on the other hand, are more limited in scope, generally adding new commodities and/or rates. Numerous commenters support more flexibility in filing service contract amendments, which they contend will not diminish the effectiveness of the Commission's oversight of service contracts.

    In considering the impact on all parties, the Commission is seeking comments on its proposal to allow the filing of sequential service contract amendments in the SERVCON system within 30 days of the effective date of the agreement reached between the shipper and carrier. The Commission is not proposing to allow a 30-day delay for filing of original service contracts however, given their nature and the Commission's belief that doing so would diminish its oversight abilities. Further, the Commission is seeking comment on GMTS' concerns regarding the impact of a 30-day delay in filing service contract amendments on compliance with § 530.6 and § 515.27. At this time, the Commission does not believe that these concerns outweigh the benefits of the proposed 30-day filing period. Finally, the Commission is proposing to amend certain definitions that require updating to reflect the current bureau and office names, more specifically those in § 530.3(d) and (o).

    § 530.5 Duty To File

    The Commission sought comment in the ANPR on amending its regulations to ensure that carriers are aware of the availability of the automated “web services” process for filing service contracts and amendments. In response to an industry request, the Commission developed an automated web services process in 2006, which allows service contracts, NSAs and their amendments to be filed directly from a carrier's contract management system into SERVCON, thereby reducing the regulatory burden associated with manual processing. “Pushing” the unique data already entered in the filer's contract management system directly to the SERVCON system eliminates the time, expense and opportunity for data entry errors involved in manually logging into SERVCON and filing service contracts and NSAs.

    The Commission has encouraged the use of web services by ocean carriers throughout the years, and the pace of new carriers implementing its use has recently increased. While it was previously estimated, based on carrier and tariff publisher projections of web services implementation, that the vast majority of service contracts and amendments would be filed using web services by April 1, 2016, due to delays in software programming and other issues, only 35% are presently using this option.

    The Commission received one comment regarding web services. Global Maritime Transportation Services, Inc., which files service contracts on behalf of multiple carriers, has no objection to the Commission making carriers aware of the availability of the automated web services process. However, it questions whether amending the regulations is necessary given that the percentage of filings by April 2016 through this option is anticipated to be over 90%. GMTS also questions whether it is the Commission's intent to make filing using web services mandatory.

    The Commission does not propose to make the web services option mandatory, as it is a technology that is more advantageous to high volume filers who use automated contract management systems. Given the gradual pace of adoption of web services, highlighting it in the Commission's rules would provide a public benefit. Accordingly, the Commission proposes to add regulatory language which makes filers aware of the option to use web services when filing service contracts, NSAs and amendments.

    § 530.6 Certification of Shipper Status

    This section sets forth the requirement that shippers entering into service contracts certify their status and requires VOCCs to obtain proof of an NVOCC's compliance with tariff and financial responsibility requirements. Carriers regularly use the FMC Web site, www.fmc.gov, to verify whether or not an NVOCC contract holder or affiliate is in good standing. Many carriers employ more rigid standards in certifying NVOCC status by requiring copies of the NVOCC's bond as well as the title pages of its published tariffs. In addition, many VOCCs include the NVOCC's 6-digit FMC Organization Number in the service contract, which indicates that the VOCC sought to ensure compliance with the requirements of § 530.6.

    Commission staff is regularly asked by carriers about the FMC's electronic systems' capability to automatically verify compliance with § 530.6 by determining the current status of an NVOCC party named in a service contract or amendment. While the Commission's SERVCON system does not currently have this capability, the Commission may be able to add such functionality in the future.

    The Commission asked for comment in the ANPR on whether the Commission should move forward in requiring filings to include the 6-digit FMC Organization Number for NVOCCs who are a contract holder or affiliate in a service contract by one of two options, namely:

    (1) Adding a data field in the Commission's electronic filing system (SERVCON) in order to enter the 6-digit FMC Organization Number when an NVOCC is party to a contract; or

    (2) requiring that service contracts be formatted to contain metadata that includes the 6-digit FMC Organization Number for each NVOCC that is a contract holder or affiliate in a service contract.

    The Commission pointed out in the ANPR that simply including an NVOCC party's FMC Organization Number in the body of a service contract would not allow the FMC's SERVCON system to verify NVOCC status. Only adding a data field to the SERVCON filing process wherein filers would enter the NVOCC party's Organization Number or the approach of adopting a standard service contract format to include metadata that includes the NVOCC party's Organization Number would allow the FMC to perform an automated verification of status.

    With respect to the first option, a new data field in SERVCON would require a VOCC to enter the NVOCC's 6-digit FMC Organization Number when an NVOCC is a contract holder or affiliate. If multiple NVOCCs are parties to a service contract, each NVOCC's respective Organization Number would be required to be entered into this field. The Commission may be able to enhance SERVCON to automatically determine at the time a contract or amendment is uploaded for filing, whether the NVOCC is in good standing with the Commission. Upon development, a message would be transmitted to the filer notifying it if any of the NVOCC parties are not in good standing. The development of such an automated process could potentially save carriers a substantial amount of time currently spent manually verifying an NVOCC's status.

    Under the second option, a standard service contract format would have to be adopted by all ocean carriers, allowing “metadata” to be incorporated into the service contract format to include the 6-digit FMC Organization Number of all NVOCC parties.4 This option would require a substantial amount of Commission information technology resources to develop and implement, including resources that would need to be allocated to SERVCON system programming. With the required programming implemented, however, it is likely that this technology could be leveraged to identify during the filing process service contracts or amendments not in compliance with § 530.6. If a service contract is not compliant, an alert could be sent to the carrier filing the contract or amendment.

    4 “Metadata is structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource. Metadata is often called data about data or information about information.” National Information Standards Organization (NIST), Understanding Metadata, NIST Press (2004), available at: http://www.niso.org/publications/press/UnderstandingMetadata.pdf (last visited June 17, 2016).

    The Commission received comments from Crowley, WSC and GMTS on this issue. Crowley supports “modifications to the SERVCON system that facilitate verification of a service contract signatory's NVOCC status by inputting the signatory's FMC-assigned, six-digit Organization Number.” Crowley opposes, however, “any requirement to imbed the Org. No. in the service contract metadata, or any change to SERVCON that would require service contract filers to input an Org. No. but did not provide immediate and definitive feedback on the status of the contract signatory.” GMTS supports the options put forth by the Commission in the ANPR but asks for clarification regarding how a rejection would be handled, whether a multiple NVOCC contract is voided if only one NVOCC lacks legal status, and asks if the FMC could provide a daily list of non-compliant parties. The WSC requests more detailed information as to how the proposed SERVCON changes would work before fully endorsing the Commission's proposal on verifying a NVOCC contracting party. WSC is concerned that the Commission's proposal might be too cumbersome, outweighing any advantage to be gained. They advise for example, “if a VOCC could simply add the Organization Number of an NVOCC service contract party into a specified field in SERVCON, and the system would then generate either a `green light' or `red light' response, then such a system would have the potential to simplify compliance and reduce costs.” WSC would not, on the other hand, support a reconfiguring of SERVCON requiring a uniform structuring of service contracts in order to pull “metadata” to verify NVOCC status.

    It is not the Commission's intent for verification of NVOCC status through technological enhancements of the SERVCON system to result in rejection of service contracts. If implemented, it is contemplated that the new technology would simply provide carriers with timely information on which they could act to achieve greater compliance in a less burdensome manner. See 46 CFR 530.6(d) (regarding carrier reliance). The system could allow filers to receive a message during the filing process identifying any NVOCC shipper or affiliate that is not in good standing with the Commission's licensing, registration or financial responsibility requirements. The Commission notes that comments regarding standardization of service contract format to include metadata indicate that such an approach would be considered by filers to be so cumbersome as to outweigh the potential benefits. The Commission, therefore, proposes to add an additional field in its SERVCON filing system which requires the input of an NVOCC's six-digit Organization Number when they are the contract holder or affiliate. If there are multiple NVOCC parties to a service contract, the filer would be required to input the six-digit Organization Number of all NVOCCs.

    The Commission contemplates that, upon completion of necessary SERVCON programming, this data would be corroborated against FMC's database systems and return a message to the filing party if the NVOCC is not in good standing. Completing this process would satisfy the due diligence requirements in § 530.6.

    Subpart B—Filing Requirements § 530.8 Service Contracts

    In the comments submitted by thirty ocean common carriers in response to the Commission's Plan for Retrospective Review of Existing Rules, a number of the carriers cite the filing of service contract amendments as the largest administrative burden for both carriers and their customers. Many ocean carriers believe that the service contract effective date requirement is overly burdensome and restrictive given current commercial practices, particularly with respect to amendments to contracts. The carriers maintain that filing amendments within 30 days would enable shippers and carriers to apply agreed-upon terms immediately and thus do business without disrupting or delaying that business. Of note, the proposed change in the definition of effective date would only affect the filing date of the amendment, as the parties must still agree to the rates and/or contract terms prior to receipt of the cargo. Comments regarding whether the Commission should allow filing of service contract amendments up to 30 days after agreement by the parties have been summarized previously under the discussion of § 530.3(i), Effective date.

    This section relates to the implementation in the SERVCON system of the method whereby carriers could file service contract amendments up to 30 days after agreement, should the Commission take that action. To facilitate this discussion, the Commission sought comment in the ANPR on whether it should revise its regulations to allow: (1) A service contract amendment to be filed individually and sequentially within 30 days of its effectiveness; or (2) any number of service contract amendments to be consolidated into a single document, but filed within 30 days of the effective date of the earliest of all amendments contained in the document.

    A more detailed explanation of the manner in which service contract amendments are presently filed into the FMC's SERVCON system may be useful to evaluate the two approaches. Currently, SERVCON is designed to process the filing of the initial service contract as Amendment “0,” with subsequent amendments to the contract numbered sequentially, beginning with Amendment No. “1.” Each amendment requires that the filer enter the corresponding effective date of that amendment. If the Commission determines to allow amendments to be filed up to 30 days after agreement and the existing filing process is maintained involving the sequential filing of amendments starting with Amendment No. 1, then little, if any, programming changes may be required in SERVCON. With that approach, the only difference from the present process would be that the effective date entered could be up to 30 days prior to the filing date.

    The alternative approach on which the Commission requested comments was the possibility of consolidating multiple service contract amendments into a single document. This was considered because the carriers also proposed aggregating several contract changes in a single amendment in what, in effect, could be a monthly filing. In a monthly filing of this type, it would still be necessary for carriers to specify the effective date of each amendment to the contract. Adding to this complexity, we note that the rate may change more than once in a monthly period. The SERVCON system is not presently capable of processing multiple amendments consolidated into a single document, e.g., Amendment Nos. 2 through 10, with multiple effective dates. Thus, this approach would require a substantial amount of reprogramming to enable the system to capture both the effective dates and amendment numbers. Further, based on input from the Commission's Office of Information Technology, carriers would still need to manually input the effective date of each amendment into SERVCON. Therefore, absent the requisite reprogramming, this process could possibly result in more, rather than less, of a filing burden. Consolidating several service contract amendments may also prevent carriers from using the Commission's web services technology in accordance with § 530.5, thereby offsetting the advantages of this technology, which does not require manual input and is intended to streamline processes and reduce the burden of filing.

    In this regard, the WSC commented:

    On the issue of whether the Commission should allow multiple service contract amendments to be filed in a single document, such a process would provide the greatest relief and would potentially be the most efficient. Based on the discussion in the ANPRM, however, it appears that there may be substantial SERVCON re-programming requirements associated with such functionality. Absent such re-programming, the Commission has suggested that filing multiple amendments in a single document may require substantial manual data input by carriers.

    The WSC added that “the primary focus should be on providing a 30-day period in which to file service contract amendments.” WSC clarified that, while it would be “ideal” to accommodate multiple amendments in a single document, “if creating the ability to file multiple amendments in a single document would require a cumbersome manual process, then such a process would not be attractive.”

    Crowley commented, “[w]hen an amendment makes multiple changes that were effective on different dates, Crowley envisions that the amendment itself would reflect the effective date of each change, thereby avoiding any need to alter the Commission's SERVCON filing system.” “However,” Crowley adds that it “would be open to alternative filing approaches, provided that any approach eventually adopted minimizes the burden on the industry.”

    GMTS suggests “a more effective administration of the contract process” and encourages a “rule making by the FMC that would specifically allow for electronic acceptance of an amendment, as is the case with NRA's.” GMTS also expresses concern “that by allowing filings to take place after the effective date it undermines the public record process and obscures activity.” GMTS adds that it is “also concerned that relaxing this requirement does not address issues, which would come to light especially if the FMC adopts the suggestion of including the NVOCC registration number into the filing of contracts.”

    The Commission notes that it would require significant programming time and considerable expense to update the SERVCON system to allow for multiple amendments to be filed in a single document at one time. Another suggestion of noting disparate effective dates within the service contract amendment alongside each change does not facilitate Commission review of contract amendments and could lead to confusion in ascertaining effective dates of changes. Therefore, the Commission proposes maintaining its existing requirement requiring sequential amendments to service contracts with a single effective date for all changes within that amendment, but also proposes allowing for those amendments to be filed up to 30 days after they have been concluded by the carrier and shipper.

    § 530.10 Amendment, Correction, Cancellation, and Electronic Transmission Errors

    The carriers' comments discussed in the ANPR noted that the current service contract correction procedures are outdated, and they maintained that these procedures are “ill suited” to the manner in which service contracts are employed today. The carriers requested a number of revisions to these requirements. The ANPR sought comment regarding service contract correction requests, corrected transmissions, and a proposed “conforming amendment.” An item by item discussion follows.

    Electronic Transmission Errors

    The carriers' request that the Commission allow a 30-day grace period in which a carrier would not be required to file a service contract correction request (seeking retroactive effectiveness to correct a clerical or administrative error) or a formal amendment to the contract (effective upon filing or in the future). Rather, carriers would be permitted to submit a new type of filing, designated as a “conforming amendment” or similar special designation in order to retroactively correct a “typographical or clerical error”.

    The Commission questions whether this process would, in effect, replace the service contract correction process in § 530.10(c) within the first 30 days after filing. That process provides a means for carriers to correct a clerical or administrative error within 45 days of filing by submitting, among other things, an affidavit and other documentation used for verification purposes that establishes the nature of the error and the parties' intent. The carriers' suggested procedure would seem to eliminate the requirement for such documentation for a correction filed within 30 days of the contract's filing

    In this regard, a service contract or amendment can currently be corrected through a Corrected Transmission. Pursuant to § 530.10(d), Electronic transmission errors, carriers may file a “Corrected Transmission” (CT) within forty-eight (48) hours of filing a service contract or amendment into SERVCON, but only to correct a purely technical data transmission error or a data conversion error that occurred during uploading. A CT may not be used to make changes to rates, terms or conditions.

    While the vast majority of service contracts are uploaded into the Commission's electronic filing system, SERVCON, without encountering any problems, staff has noted that, when errors do occur, many times carriers do not discover the error until after the initial 48-hour period has passed. Most of these mistakes are attributable to data entry errors on the SERVCON upload screen (e.g., the incorrect amendment or service contract number is entered, an incorrect effective date is typed, or the wrong contract or amendment is attached for uploading). Staff verifies that these are indeed purely clerical data errors that do not make changes to rates, terms, or conditions prior to accepting the CT filings. While incorporation of web services filing would reduce the occurrence of many of the technical and data transmission errors leading to a Corrected Transmission, the Commission is seeking comments on whether the current 48-hour period in which to file a CT after filing the original contract or amendment should be extended to thirty (30) days to afford carriers with a more realistic time frame to correct purely technical data transmission errors.

    In its comments, GMTS supports extending the time period in which to submit a Corrected Transmission for an electronic transmission error from 48 hours to 30 days. WSC and Crowley agree that the 30-day period for a CT is more realistic, and believe that extending the filing period would “enhance the accuracy of filed service contract information without affecting regulatory purposes.”

    As a Corrected Transmission is limited only to correcting a purely technical data transmission error or a data conversion error that occurred during uploading in SERVCON, and may not be used to make changes to rates, terms or conditions, the Commission proposes extending the time frame in which to file a Corrected Transmission from 48 hours to 30 days.

    Extend Filing Period for Correction Requests to 180 Days

    The Commission requested comment regarding whether it should extend the time period for filing a service contract correction request from forty-five (45) to one-hundred eighty (180) days after the contract's filing. The Commission is aware that an error in a service contract may not be discovered until after cargo has moved, been invoiced on the bill of lading, and, the shipper notes that the rate assessed is not the agreed upon rate. Given long transit times due to carriers' global pendulum services and slow steaming, in many cases this type of error is not discovered until well after 45 days has transpired. In other cases, shippers engage in audits of bills of lading thtat identify errors in the service contract that do not match the rates offered. These audits may be well after the 45-day period. To provide needed flexibility in this process, the Commission has considered whether a longer time period in which to file is appropriate.

    Comments filed by WSC, Crowley and GMTS all support extending the time in which to file a service contract correction request from 45 days to 180 days. WSC noted that “the nature of some services, in conjunction with the time involved in the issuance of an invoice by a carrier and the review of that invoice by a shipper (the process through which errors are likely to be discovered) makes the existing 45-day period inadequate in many circumstances.” WSC also believes that the Commission's regulations “should support the parties' interests in having their commercial agreements implemented, and allowing additional time to discover and correct mistakes would further that purpose and reduce disputes.” No comments were filed objecting to this requested change.

    The Commission recognizes that the discovery of a mistake made in a service contract which is contrary to the agreement of the parties may not necessarily occur within a short time after the cargo has moved. In addition, auditing of freight bills by shippers can be delayed as well. Commission staff is occasionally contacted by carriers who wish to correct a service contract error which was not discovered until the present 45-day time limit for correction requests has expired. In such cases, no regulatory remedy exists and the parties must make a commercial accommodation in the service contract to address the problem. Given the foregoing, including the lack of objections to this request, the Commission proposes extending the time period in which to file a service contract correction request from 45 days to 180 days.

    Extend the Service Contract Correction Procedure To Include Unfiled Contracts and Amendments

    The ANPR requested comment on various aspects of the requests posed in the ocean carriers' comments. The ocean carriers requested that the Commission allow the correction process to also be utilized for unfiled service contracts and service contract amendments. The Shipping Act requires that service contracts be filed with the Commission. 46 U.S.C. 40502. Shippers have expressed to the Commission that they believe a filed contract provides them with assurance that the rates and terms of the service contract will be adhered to by both the shipper and carrier.

    GMTS was the only party to comment on this issue. It supports extending the service contract correction process to include unfiled service contracts and amendments, provided that the affidavit process is maintained “in order to establish a verifiable error was clerical or systems but not intentional.”

    The Commission has an interest in granting flexibility in the regulatory process where public benefits outweigh the costs. The changes proposed regarding the extension of time for electronic transmission errors and for filing service contract correction requests should provide needed flexibility. However, extension of the service contract correction process to address a carrier's failure to file a service contract or amendment with the Commission would undermine the statutory filing requirement and shippers' reliance on that requirement. The Commission, therefore, does not propose extending the service contract correction process to include unfiled service contracts and amendments.

    Eliminate Carrier Affidavit and Significantly Reduce Filing Fee

    The ANPR sought comment on the carriers' request to the Commission to eliminate the affidavit requirement for service contract correction requests and also significantly reduce the filing fee. The filing fee reflects time expended by Commission staff to research and verify information provided in the correction request and to conduct its analysis.

    The Commission is not proposing any changes to the affidavit requirement but is considering reducing the fee as part of its rulemaking under FMC Docket No. 16-06, Update of Existing and Addition of New User Fees, in which a Notice of Proposed Rulemaking (NPRM) was issued on May 27, 2016. 81 FR 33637. The affidavit requirement is a critical component in establishing and verifying the facts surrounding an error, while streamlining Commission staff's review and analysis of the correction request. In the only comment filed concerning this matter, GMTS supports reducing the filing fee on the condition that the Commission maintain the affidavit requirement.

    The Commission estimated in the User Fee NPRM that it could reduce the filing fee from $315 to $95 by streamlining its internal processes, provided that the affidavit requirement is not eliminated. If the affidavit requirement were eliminated, staff time researching and verifying information would increase, and thus, the filing fee would need to be increased commensurate with the additional time required for processing and analysis.

    Subpart C—Publication of Essential Terms § 530.12 Publication

    During discussions with stakeholders held prior to the initiation of this rulemaking, several advised the Commission that essential terms publications were no longer accessed by the public or useful. However, other stakeholders indicated that they do rely on them for various purposes, such as during a grievance proceeding.

    GMTS was the only commenter to respond to the ANPR regarding the essential terms publication requirement. GMTS does not support any changes to the current essential terms requirements. GMTS suggests that the essential terms publication provides critical volume and commodity information and fills both a commercial and compliance need without which there would be a diminution of the public record.

    The Commission does not propose modifying its rules regarding the publication of essential terms.

    Subpart D—Exceptions and Implementation § 530.13 Exceptions and Exemptions § 530.13(a) Statutory Exceptions

    Commission rules in this section identify the commodities that are exempt from the tariff publication and service contract filing requirements of the Shipping Act. See 46 U.S.C. 40501(a)(1) and 40502(b)(1). Commodities that are presently exempt pursuant to the Act are bulk cargo, forest products, recycled metal scrap, new assembled motor vehicles, and waste paper or paper waste.

    In response to the ANPR, WSC reiterated its support of the comments submitted previously by the ocean common carriers that recommended the FMC expand the list of exempt commodities pursuant to the Commission's exemption authority contained in Section 16 of the Act, 46 U.S.C. 40103. As WSC explains, “the basis for this proposal is that the commodities for which exempt status is requested may be moved in bulk or by tramp vessels, and that the exemption would provide flexibility that would increase competition for those cargoes.” WSC supports the carriers' proposal to add the following commodities to the list of exempt commodities: Grain, soybeans, meal, flour, corn products, cotton, resins, coffee, animal feed, seeds, food additives, clay, hay, hides and plastic scrap.

    In addition to the commodities identified by the WSC, Crowley requests the exemption of fruits, vegetables and other agricultural products as well. Crowley asserts that these commodities are, similar to the existing exempt commodities, “subject to transport by bulk or reefer operators that, in many cases, are not subject to FMC regulation.” Crowley claims that U.S. importers and exporters would benefit should the Commission exempt these agricultural commodities.

    GMTS, a tariff and contract management firm that files service contracts in SERVCON for numerous VOCC clients, stated that they are “concerned that the introduction of additional commodities to the exempt commodity list would make it difficult if not impossible to produce a relevant index on these commodities.” In their experience, GMTS asserts, some of the commodities proposed for inclusion in the exempt commodities list tend to be seasonal, are contracted on an annual basis with limited changes, and therefore, do not involve a large number of contract amendments. GMTS stated that they reviewed hundreds of VOCC service contracts in their filing system that included the new commodities proposed for exemption, and found that contracts comprising shipments of a single commodity, such as seed or soybean alone, had very few contract amendments. GMTS is concerned with the potential “expansion of the exempted commodity list and its impact on reliant analysis should these commodities be removed from the reporting process.”

    The Commission has a number of concerns regarding expansion of the list of exempt commodities. Of note, two of the highest paying commodities in terms of freight rates in the U.S. export trade are among those proposed for exemption by WSC and the ocean carriers, namely, refrigerated cargoes and cattle hides. Exporters of currently exempt commodities have expressed frustration to the Commission regarding the ocean carrier practice of offering exempt commodity tariff rates with periods of limited duration, in some cases for only thirty to sixty days, rather than for the longer periods that are customary in service contracts. Further, exempt commodity tariffs are not published and do not provide shippers with thirty days' notice prior to implementation of rate increases. Whereas service contracts allow shippers to negotiate rates and terms with carriers to tailor services and terms to the shipper's specific needs, many exporters advise that exempt commodities are not afforded this opportunity.

    Given the potential disadvantage to shippers in negotiating with ocean carriers for transportation of exempt commodities, and the lack of shipper support for exempting additional commodities, the Commission does not propose exercising its exemption authority to add new commodities to the list of those exempted from the FMC's tariff publication and service contract filing requirements.

    The Commission is proposing, however, to amend § 530.13(b)(2), to reflect the change in name of the relevant Department of Defense entity from Military Transportation Management Command to Surface Deployment and Distribution Command.

    § 530.14 Implementation

    If the Commission adopts the proposal to allow up to 30 days for filing service contract amendments after agreement of the parties, corresponding changes would be made to § 530.14. Refer to the discussion under § 530.3(i), Effective date.

    Part 531—NVOCC Service Arrangements Subpart A—General Provisions § 531.1 Purpose

    In response to the ANPR, NCBFAA echoes its earlier comments regarding the Commission's Plan for Retrospective Review of Existing Rules and its petition for rulemaking in FMC Docket No. P2-15.5 NCBFAA supports the Commission's consideration of regulatory changes focused on reducing unnecessary regulatory burdens and easing compliance by potentially allowing more time to process amendments to service contracts and NSAs, and to correct technical or substantive errors made in filings. NCBFAA believes that the current service contract and NSA filing requirements are ill suited to keeping pace with the “dynamic nature of the ocean shipping marketplace in this post-OSRA environment” and requests that any regulatory relief granted by the Commission to VOCCs with respect to their service contract requirements also be extended to the NVOCC NSA requirements.

    5 NCBFAA filed a petition for rulemaking on April 18, 2015. See Docket No. P2-15, Petition of the National Customs Brokers and Forwarders Association of America, Inc. for Initiation of Rulemaking (NCBFAA Petition). The Commission has accepted the NCBFAA Petition and will address the proposals presented therein during a subsequent rulemaking proceeding.

    NCBFAA argues that justification for relief to NVOCCs is even more compelling than that of VOCCs, given the challenges NVOCCs face reacting to the daily rate and surcharge changes being made by VOCCs that an NVOCC utilizes for transporting its clients' cargo. NCBFAA states that NSAs are significantly underutilized by NVOCCs and asserts that NSA filing statistics clearly indicate that NSAs have not been commercially accepted. However, those NVOCCs using NSAs face similar pressures as VOCCs to timely file. Thus, NCBFAA supports Commission efforts to ease NSA requirements with respect to the timing of amendment filings. The group does not believe, however, that such efforts are far reaching enough.

    In fact, NCBFAA reminds the Commission that it has been “urging the Commission to eliminate the NSA publication and filing requirements since their inception.” While recognizing that VOCCs and NVOCCs are both common carriers, NCBFAA asserts that the Commission's introduction of NSA filing requirements was only to “maintain the superficial parity in the way VOCCs and NVOCCs are regulated” and claims that such parity “is not warranted because VOCCs and NVOCCs are not similarly situated and their activities are quite different. NCBFAA emphasizes that NVOCCs do not enjoy antitrust immunity and therefore do not have “collectively established boilerplate terms and conditions or consider, let alone follow, `voluntary guidelines' relating to pricing or service conditions.” NCBFAA advocates that, inasmuch as there are situations where NVOCCs and their customers would like to enter into more formal, long-term arrangements, which cannot be accomplished through NRAs, the industry would benefit by having the Commission reexamine the need for continuing the filing of NSAs and the publication of essential terms. NCBFAA further urges the Commission to allow NRAs, which unlike NSAs are not filed with the FMC, to include “non-rate economic terms, including credit and payment terms, rate methodology, minimum quantities, forum selection and arbitration clauses.”

    Unitcargo Container Line, Inc., an NVOCC, submitted comments paralleling those of NCBFAA inasmuch as they support changes to NSA regulations that would allow more time for filing NSA amendments. It also urges the Commission to completely eliminate the NSA filing and publication requirements and allow for the inclusion of non-economic terms in NRAs. Unitcargo states that it and its customers prefer using NRAs, noting that many of its shippers find NSAs “unnecessarily formal and burdensome.”

    UPS strongly opposes the position taken by NCBFAA, commenting that “NCBFAA appears to suggest that the provisions in the Commission's regulations for NSAs filed with the Commission ought to be phased out in favor of exclusive use of unfiled NSAs.” UPS maintains that NCBFAA's suggested approach “would do damage to larger volume NVOCCs that have built their core service arrangements around the NSA format.” UPS describes the distinctions between NSAs and NRAs, stating “although the numbers of unfiled NRAs now in use are substantially larger than the number of NSAs filed annually, the NRAs are typically single-rate, single-lane, single-shipper arrangements, whereas NSAs often cover hundreds of rates on multiple global routes, as part of a multimodal master services arrangement for a shipper affiliate group, often covering continuing shipments over a period of time.” UPS goes on to say that “NVOCCs such as UPS make substantial percentages of their ongoing bookings utilizing NSAs, especially for large retailers, industrial shippers and government shippers.” While UPS supports Commission initiatives that would introduce flexibility into the current NSA regulations, they further advocate that “NSAs cannot simply be scrapped in favor of forcing NVOCCs that have developed complex competitive arrangements to revert to the use of NRAs that are not always suitable to meet the expectations of large-volume sophisticated shipper customers.”

    CEVA Freight LLC, agents for Pyramid Lines, supports flexibility in filing amendments “so that the regulatory process does not delay the implementation of commercial agreements.” However, CEVA sees no reason why NSAs need to be filed with the Commission, advocating that the Commission can request an NSA from an NVOCC to fulfill FMC regulatory review needs. GMTS' comments do not support elimination of the filing of NSAs.

    The Commission will be addressing the request to eliminate the NSA filing and publication requirements in a future rulemaking addressing NCBFAA's petition. Accordingly, the Commission takes no position at this time on the comments supporting such a change, and the Commission is moving forward with the proposed amendments to Part 531, described in detail below, in this rulemaking.

    § 531.3 Definitions § 531.3(k) Effective Date

    The Commission's regulations presently require that an NSA or amendment be filed on or before the date it becomes effective. In response to filed VOCC comments, the Commission is proposing to allow the filing of service contract amendments pursuant to Part 530 to be delayed up to 30 days after an amendment is agreed to by the contract parties. In order to relieve the filing burden on NVOCCs as well, the Commission is proposing to similarly allow amendments to NSAs to be filed up to 30 days after an amendment is agreed to by the parties.

    The NCBFAA comments stated, “[j]ust as it is appropriate for the Commission to adopt the proposed changes in the service contract regulations, the agency should at least provide the same relief to NVOCCs with respect to NSAs.”

    UPS commends the Commission for examining possible approaches to increase efficiency in the industry and favors greater flexibility in the NSA regulations. UPS supports the concept of allowing contracts and amendments to be filed and essential terms publication to be completed within a reasonable time after the effective date, rather than in advance.

    CEVA Freight, LLC, as agents for Pyramid Lines, supports the Commission permitting NVOCCs the “flexibility in filing amendments so that the regulatory process does not delay the implementation of commercial agreements.” In addition, CEVA supports the Commission allowing NVOCCs to file multiple NSA amendments signed over a 30-day period in a single filing. GMTS does not support the filing of amendments to NSAs after the effective date of agreement of the parties.

    The Commission invites further comments on these varying positions regarding up to the 30-day delay in filing NSA amendments. As discussed above, the Commission does not currently believe that GMTS' concerns outweigh the proposed 30-day filing period. With respect to CEVA's comment to allow multiple amendments to be included in a single filing, the Commission is tentatively rejecting this recommendation for the same reasons discussed above in the service contract section. It would require significant programming time and considerable expense to update the SERVCON system to allow multiple amendments to be filed in a single document at one time, and, therefore, the Commission proposes maintaining its existing requirement that sequential amendments for NSAs be filed with a single effective date for all changes within that amendment. Those amendments could, however, be filed up to 30 days after they have gone into effect.

    § 531.5 Duty To File

    The Commission proposes to add regulatory language under § 530.5 which makes service contract filers aware of the option to use web services when filing service contracts and their corresponding amendments. While no comments were received from NVOCCs regarding this matter, larger volume filers of NSAs may find it advantageous. The Commission wishes to avail NVOCCs of this option as well, and therefore, proposes to add similar regulatory language to this section to alert NSA filers of their ability to use web services to file NSAs and amendments, should they so choose.

    Subpart B—Filing Requirements § 531.6 NVOCC Service Arrangements

    Presently the Commission's regulations require that an NSA or amendment be filed on or before the date it becomes effective. As discussed above, the Commission is proposing to allow up to 30 days for filing NSA amendments after their effective date, and is proposing corresponding changes to § 531.6.

    § 531.6(d) Other Requirements

    Pursuant to § 531.6(d)(4), an NVOCC may not knowingly and willfully enter into an NSA with another NVOCC that is not in compliance with the Commission's tariff and proof of financial responsibility requirements. As more fully discussed under § 530.6, above, the industry frequently refers to the Commission's Web site, www.fmc.gov, to verify whether or not an NVOCC contract holder or affiliate is compliant with these requirements.

    The ANPR requested comment on different options that, upon development, would allow the FMC's SERVCON system to alert filers at the time of uploading service contracts, NSAs and amendments thereto, if an NVOCC contract signatory or affiliate is not in good standing. As discussed, the alert notifying the filer that an NVOCC is not in good standing is intended to leverage technology in order to assist filers with compliance and would not result in the rejection of a filing.

    Given the comments discussed in § 530.6 above, the Commission proposes to add an additional field in its SERVCON filing system which requires the input of an NVOCC's six-digit Organization Number when they are the contract holder or affiliate. If there are multiple NVOCC parties to a service contract, the filer would be required to input the six-digit Organization Number of all NVOCCs.

    § 531.6(d)(5) Certification of Shipper Status

    The NSA regulations do not include a requirement that the NSA shipper certify its status, which is a requirement for shippers under current service contract regulations in Part 530. The Commission sought comment on whether to make this requirement consistent and uniform for NVOCCs and VOCCs. No comments were filed that addressed certification of shipper status in NSAs. The Commission's interest in ensuring that all NVOCCs in the supply chain are FMC licensed or registered, and as a consequence hold an OTI bond, provides greater assurance that shippers will not be harmed by unfair or deceptive practices. Given the potential benefits, the Commission proposes to add a requirement that all NSA contract shippers and affiliates certify their shipper status.

    § 531.8 Amendment, Correction, Cancellation, and Electronic Transmission Errors

    Under the Commission's regulations, VOCC service contracts and NVOCC service arrangements are agreements between a common carrier and a shipper for the carriage of cargo. Given these congruencies, the Commission is considering whether changes being proposed by the VOCCs to the correction procedures for service contracts should be handled in a similar manner for NSAs. A complete discussion of the changes requested with respect to service contract amendment, correction, cancellation, and electronic transmission errors is included in § 530.10 above.

    To provide the same flexibility with regard to correcting errors in NVOCC NSAs as the Commission proposes for VOCCs service contract errors, the Commission proposes: (1) Extending the time period in which to file a Corrected Transmission to remedy an NSA electronic transmission error under § 531.8(c) from 48 hours to 30 days and; (2) extending the time period for filing an NSA correction request under § 531.8(b) from 45 to 180 days.

    Subpart C—Publication of Essential Terms § 531.9 Publication

    As noted previously, NCBFAA's comments requested that the Commission consider whether the NSA filing and the essential term tariff publication requirements are necessary, and requests the Commission eliminate those requirements. The other commenter on this matter, GMTS, does not support any changes to the current essential terms filing requirements.

    The Commission will be addressing the request to eliminate the NSA publication requirements in a future rulemaking addressing NCBFAA's petition. Accordingly, the Commission takes no position at this time on the comments supporting such a change and is not proposing any changes to the NSA publication requirements as part of this rulemaking.

    Subpart D—Exceptions and Implementation § 531.10 Excepted and Exempted Commodities

    The Commission sought comment on whether to treat VOCC service contracts and NVOCC service arrangements, as well as the tariffs of both, in a similar fashion with respect to exempted commodities. No specific comments were filed addressing this issue related to NVOCCs. As the Commission is not proposing to exercise its exemption authority under Section 16 of the Shipping Act to exempt additional commodities for VOCCs, it does not propose to do so for NVOCCs under this section.

    The Commission is proposing however, to amend § 531.10(b)(2), to reflect the change in name of the relevant Department of Defense entity from Military Transportation Management Command to Surface Deployment and Distribution Command.

    § 531.11 Implementation

    Changes regarding the effective date of service contract amendments are being proposed by the Commission under Part 530. The Commission is proposing similar requirements for NSA amendments in Part 531 (NVOCC Service Arrangements).

    III. Regulatory Notices and Analysis 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 describing the impact of the proposed rule on small entities, unless the head of the agency certifies the rulemaking, 5 U.S.C. 603, 605. Accordingly, the Chairman of the Federal Maritime Commission certifies that the proposed rule, if promulgated, will not have a significant impact on a substantial number of small entities. The regulated business entities that would be impacted by the rule are vessel operating common carriers (VOCCs) and non-vessel operating common carriers (NVOCCs) that enter into service contracts and NVOCC service arrangements (NSAs), respectively, with shippers of cargo. The Commission has determined that VOCCs generally do not qualify as small under the guidelines of the Small Business Administration (SBA), while the majority of NVOCCs do qualify as small under the SBA guidelines. The Commission concludes, however, that the proposed rule would not have a significant impact on NVOCCs. In this regard, the rule pertains to an NSA entered into between a NVOCC and a shipper, which is an optional pricing arrangement that benefits the shipping public and relieves NVOCCs from the burden of the statutory tariff filing requirements in 46 U.S.C. 40501. The only proposed change that would increase the burden on NVOCCs is the proposed requirement to include the organization number for NVOCC shippers. Although this requirement would increase the filing burden associated with NSAs, the additional burden would be minimal. Specifically, as discussed in more detail below, the Commission estimates that only 10% of NSA filings would be affected by this proposed requirement and inputting the NVOCC shipper's organization number would add less than a minute to the filing time for affected submissions. As a result, the total additional burden imposed across all NVOCCs would only be 5 hours of additional filing time annually.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) 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 530, Service Contracts, and Part 531, NVOCC Service Arrangements, are currently authorized under OMB Control Numbers 3072-0065 and 3072-0070, respectively. If approved, this rule would require a VOCC that files a service contract or amendment thereto into the FMC's SERVCON system to also enter the 6-digit FMC Organization Number of any NVOCC shipper party or affiliate. The same requirement is being proposed for NVOCC Service Arrangement filings. In compliance with the PRA, the Commission has submitted the proposed revised information collections to the Office of Management and Budget.

    The Shipping Act prohibits common carriers from accepting cargo from, transporting cargo for, or entering into a service contract with an ocean transportation intermediary that does not have a tariff and a bond. See 46 U.S.C. 41104(11)-(12). While current rules recognize several options by which service contract filers verify shipper status, 46 CFR 530.6(b) and 515.27(a)-(d), common carriers typically obtain the NVOCC's Organization Number prior to contract filing, in the course of verifying whether an NVOCC maintains a current tariff and bond. Indeed, twenty major VOCCs already collect and include this information in their filings. Therefore, the Commission estimates that the average time needed to input and submit this additional data item when transmitting filings to be minimal, i.e., less than one minute per filing.

    Public burden for the collection of information associated with Part 530, Service Contracts, as revised, would encompass 103 likely respondents and an estimated 2,216,097 annual instances,6 with an overall annual estimated burden of 89,775 total hours. The Commission estimates that approximately 45% of service contracts are entered into with NVOCC shippers, to which the proposed 6-digit organization number reporting requirement would apply. Consequently, of the 89,775 hours estimated annually for the Part 530 information collection, approximately 4,336 hours would be attributable to the new requirement proposed in this rulemaking.

    6 Annual instances include the filing of new service contracts and amendments, essential terms publication, notification/filing requirements, Form FMC-83, disclosure/third party, and record keeping/audit requirements. Of the total annual instances of 2,216,097, the number of service contracts and amendments combined is 642,309. Forty-five percent of those is 289,039.

    Public burden for the collection of information pursuant to Part 531, NVOCC Service Arrangements, as revised, would comprise 79 likely respondents and an estimated 10,371 annual instances,7 with an overall annual estimated burden of 839 total hours. The Commission estimates that approximately 10% of NSAs include NVOCC shippers, to which the proposed 6-digit organization number reporting requirement would apply. Of the 839 hours estimated annually for the Part 531 information collection, approximately 5 hours would be attributable to the new requirement proposed in this rulemaking.

    7 Annual instances include the filing of new NSAs and amendments, essential terms publication, notification/filing requirements, Form FMC-78, disclosure/third party, and record keeping/audit requirements. Of the total annual instances of 10,371, the number of NSAs and amendments combined is 3,249. Ten percent of those is 325.

    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.

    Regulation Identifier Number

    The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain.

    List of Subjects 46 CFR Part 530

    Freight, Maritime carriers, Report and recordkeeping requirements.

    46 CFR Part 531

    Freight, Maritime carriers, Report and recordkeeping requirements.

    For the reasons stated in the supplementary information, the Federal Maritime Commission proposes to amend 46 CFR parts 530 and 531 as follows:

    PART 530—SERVICE CONTRACTS 1. The authority citation for part 530 continues to read as: Authority:

    5 U.S.C. 553; 46 U.S.C. 305, 40301-41306, 40501-40503, 41307.

    2. Amend § 530.3 by: a. Redesignating paragraph (s) as paragraph (u); b. Redesignating paragraphs (b) through (r) as paragraphs (c) through (s), respectively; c. Adding new paragraph (b); and d. Revising newly redesignated paragraphs (e), (j), and (p).

    The addition and revisions read as follows:

    § 530.3 Definitions.

    (b) Affiliate means two or more entities which are under common ownership or control by reason of being parent and subsidiary or entities associated with, under common control with, or otherwise related to each other through common stock ownership or common directors or officers.

    (e) BTA means the Commission's Bureau of Trade Analysis or its successor bureau.

    (j) Effective date means the date upon which a service contract or amendment is scheduled to go into effect by the parties to the contract. For an original service contract, the effective date cannot be prior to the filing date with the Commission. For a service contract amendment, the effective date can be no more than thirty (30) calendar days prior to the filing date with the Commission. A service contract or amendment thereto becomes effective at 12:01 a.m. Eastern Standard Time on the beginning of the effective date.

    (p) OIT means the Commission's Office of Information Technology or its successor office.

    3. Amend § 530.5 by revising paragraph (b) to read as follows:
    § 530.5 Duty to file.

    (b) Filing may be accomplished by any duly agreed-upon agent, as the parties to the service contract may designate, and subject to conditions as the parties may agree. The parties, or their duly agreed-upon agent, may utilize web services to transmit filings into the Commission's service contract electronic filing system (SERVCON).

    4. Amend § 530.6 by revising paragraph (b) to read as follows:
    § 530.6 Certification of shipper status.

    (b) Proof of tariff and financial responsibility. If the certification completed by the contract party under paragraph (a) of this section identifies the contract party or an affiliate or member of a shippers' association as an NVOCC, the ocean common carrier, conference or agreement shall obtain proof that such NVOCC has a published tariff and proof of financial responsibility as required under sections 8 (46 U.S.C. 40501-40503) and 19 (46 U.S.C. 40901-40904) of the Act before signing the service contract. An ocean common carrier, conference or agreement can obtain such proof by the same methods prescribed in § 515.27 of this chapter. Alternatively, for each NVOCC that is a shipper, an affiliate or a member of a shippers' association, its 6-digit FMC Organization Number must be entered at the time of filing into the corresponding SERVCON field, which shall serve as such proof.

    5. Amend § 530.8 by revising paragraph (a) and paragraph (d) introductory text to read as follows:
    § 530.8 Service contracts.

    (a) Authorized persons shall file with BTA, in the manner set forth in appendix A of this part, a true and complete copy of:

    (1) Every service contract before any cargo moves pursuant to that service contract; and

    (2) Every amendment to a filed service contract no later than thirty (30) days after any cargo moves pursuant to that service contract amendment.

    (d) Other requirements. Every service contract filed with BTA shall include, as set forth in appendix A to this part:

    6. Amend § 530.10 by revising paragraph (c) introductory text and the first sentence of paragraph (d) to read as follows:
    § 530.10 Amendment, correction, cancellation, and electronic transmission errors.

    (c) Corrections. Requests shall be filed, in duplicate, with the Commission's Office of the Secretary within one-hundred eighty (180) days of the contract's filing with the Commission, accompanied by remittance of a $315 service fee and shall include:

    (d) Electronic transmission errors. An authorized person who experiences a purely technical electronic transmission error or a data conversion error in transmitting a service contract filing or amendment thereto is permitted to file a Corrected Transmission (“CT”) of that filing within 30 days of the date and time of receipt recorded in SERVCON. * * *

    7. Amend § 530.13 by revising paragraph (b)(2) to read as follows:
    § 530.13 Exceptions and exemptions.

    (b) * * *

    (2) Department of Defense cargo. Transportation of U.S. Department of Defense cargo moving in foreign commerce under terms and conditions negotiated and approved by the Surface Deployment and Distribution Command and published in a universal service contract. An exact copy of the universal service contract, including any amendments thereto, shall be filed with the Commission as soon as it becomes available.

    8. Amend § 530.14 by revising paragraph (a) to read as follows:
    § 530.14 Implementation.

    (a) Generally. Performance under an original service contract may not begin before the day it is effective and filed with the Commission. Performance under a service contract amendment may not begin until the day it is effective, provided however that amendments must be filed no later than thirty (30) calendar days after effectiveness.

    § 530.15 [Amended]
    9. Amend § 530.15 by removing paragraph (b) and redesignating paragraphs (c) and (d) as paragraphs (b) and (c), respectively. PART 531—NVOCC SERVICE ARRANGEMENTS 10. The authority citation for part 531 continues to read as: Authority:

    46 U.S.C. 40103.

    11. Amend § 531.3 by revising paragraph (k) to read as follows.
    § 531.3 Definitions.

    (k) Effective date means the date upon which an NSA or amendment is scheduled to go into effect by the parties to the contract. For an original NSA, the effective date cannot be prior to the filing date with the Commission. For an NSA amendment, the effective date can be no more than thirty (30) calendar days prior to the filing date with the Commission. An NSA or amendment thereto becomes effective at 12:01 a.m. Eastern Standard Time on the beginning of the effective date.

    12. Amend § 531.5 by revising paragraph (c) to read as follows.
    § 531.5 Duty to file.

    (c) Filing may be accomplished by any duly agreed-upon agent, as the parties to the NSA may designate, and subject to conditions as the parties may agree. The parties, or their duly agreed-upon agent, may utilize web services to transmit filings into the Commission's electronic filing system (SERVCON).

    13. Amend § 531.6 by a. Revising paragraphs (a) and (b)(9)(ii); b. Redesignating paragraphs (b)(10) and (11) as (b)(11) and (12), respectively; c. Adding a new paragraph (b)(10); d. Redesignating paragraphs (d) through (g) as paragraphs (e) through (h), respectively; e. Adding a new paragraph (d); and f. Revising newly redesignated paragraphs (e)(1) and (g).

    The additions and revisions to read as follows:

    § 531.6 NVOCC Service Arrangements

    (a) Authorized persons shall file with BTA, in the manner set forth in appendix A of this part, a true and complete copy of:

    (1) Every NSA before any cargo moves pursuant to that NSA; and

    (2) Every amendment to a filed NSA no later than thirty (30) days after any cargo moves pursuant to that NSA amendment.

    (b) * * *

    (9) * * *

    (ii) Certify that this information will be provided to the Commission upon request within ten (10) business days of such request. However, the requirements of this section do not apply to amendments to NSAs that have been filed in accordance with the requirements of this section unless the amendment adds new parties or affiliates;

    (10) A certification of shipper status;

    (d) Certification of shipper status. The NSA shipper party shall sign and certify on the signature page of the NSA its shipper status (e.g., owner of the cargo, shippers' association, NVOCC, or specified other designation), and the status of every affiliate of such party or member of a shippers' association entitled to receive service under the NSA. For each NVOCC that is a shipper, an affiliate or a member of a shippers' association, its 6-digit FMC Organization Number must be entered at the time of filing into the corresponding SERVCON field.

    (e) * * *

    (1) For service pursuant to an NSA, no NVOCC may, either alone or in conjunction with any other person, directly or indirectly, provide service in the liner trade that is not in accordance with the rates, charges, classifications, rules and practices contained in an effective NSA.

    (g) Exception in case of malfunction of Commission electronic filing system. (1) In the event that the Commission's electronic filing system is not functioning and cannot receive NSAs filings for twenty-four (24) continuous hours or more, affected parties will not be subject to the requirements of paragraph (a) of this section and § 531.11 that an NSA be filed before cargo is shipped under it.

    (2) However, NSAs which go into effect before they are filed due to a malfunction of the Commission's electronic filing system pursuant to paragraph (g)(1) of this section, must be filed within twenty-four (24) hours of the Commission's electronic filing system's return to service.

    (3) For an NSA that is effective without filing due to a malfunction of the Commission's filing system, failure to file that NSA within twenty-four (24) hours of the Commission's electronic filing system's return to service will be considered a violation of these regulations.

    14. Amend § 531.8 by revising paragraphs (b)(1) and (c) to read as follows:
    § 531.8 Amendment, correction, cancellation, and electronic transmission errors.

    (b) * * *

    (1) Requests shall be filed, in duplicate, with the Commission's Office of the Secretary within one-hundred eighty (180) days of the NSAs filing with the Commission, accompanied by remittance of a $276 service fee.

    (c) Electronic transmission errors. An authorized person who experiences a purely technical electronic transmission error or a data conversion error in transmitting an NSA or an amendment thereto is permitted to file a Corrected Transmission (“CT”) of that filing within 30 days of the date and time of receipt recorded in SERVCON. This time-limited permission to correct an initial defective NSA filing is not to be used to make changes in the original NSA rates, terms or conditions that are otherwise provided for in paragraphs 531.6(b) of this section. The CT tab box in SERVCON must be checked at the time of resubmitting a previously filed NSA, and a description of the correction made must be stated at the beginning of the corrected NSA in a comment box. Failure to check the CT box and enter a description of the correction will result in the rejection of a file with the same name, since documents with duplicate file names or NSA and amendment numbers are not accepted by SERVCON.

    15. Amend § 531.10 by revising paragraph (b)(2) to read as follows.
    § 531.10 Excepted and exempted commodities.

    (b) * * *

    (2) Department of Defense cargo. Transportation of U.S. Department of Defense cargo moving in foreign commerce under terms and conditions approved by the Surface Deployment and Distribution Command and published in a universal service contract. An exact copy of the universal service contract, including any amendments thereto, shall be filed with the Commission as soon as it becomes available.

    16. Revise § 531.11 to read as follows.
    § 531.11 Implementation.

    Generally. Performance under an original NSA may not begin before the day it is effective and filed with the Commission. Performance under an NSA amendment may not begin until the day it is effective, provided however that amendments must be filed no later than thirty (30) calendar days after effectiveness.

    By the Commission.

    Karen V. Gregory, Secretary.
    [FR Doc. 2016-19843 Filed 8-19-16; 8:45 am] BILLING CODE 6730-01-P
    AGENCY FOR INTERNATIONAL DEVELOPMENT 48 CFR Part 752 RIN 0412-AA81 Requirement for Nondiscrimination Against End-Users of Supplies or Services (“Beneficiaries”) Under USAID-Funded Contracts AGENCY:

    U.S. Agency for International Development.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Foreign Assistance Act of 1961, as amended (FAA), authorizes the U.S. Agency for International Development (USAID) to provide foreign assistance in the form of development and humanitarian assistance that reflect American ideals. To help emphasize USAID's intent and expectation of non-discrimination of beneficiaries in USAID-funded activities, USAID is proposing to amend its Agency for International Development Acquisition Regulation (AIDAR) to include a new clause entitled “Nondiscrimination against End-Users of Supplies or Services.” This proposed clause expressly states that USAID-funded contractors must not discriminate among end-users of supplies or services (referred to in this rule as beneficiaries and potential beneficiaries) in any way that is contrary to the scope of the activity as defined in the statements of work (SOWs).

    DATES:

    To be considered, comments must be received no later than September 21, 2016.

    ADDRESSES:

    Address all comments concerning this notice to Todd Larson, Senior Coordinator, U.S. Agency for International Development, Rm. 6.09-71 RRB, 1300 Pennsylvania Avenue NW., Washington, DC 20523. Submit comments, identified by title of the action and Regulatory Information Number (RIN) by any of the following methods:

    1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting comments.

    2. By Email: Submit electronic comments to [email protected] See SUPPLEMENTARY INFORMATION for file formats and other information about electronic filing.

    3. By Mail addressed to: Todd Larson, U.S. Agency for International Development, Rm. 6.09-71 RRB, 1300 Pennsylvania Avenue NW., Washington, DC 20523.

    FOR FURTHER INFORMATION CONTACT:

    Todd Larson Telephone: 202-712-4969 or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    USAID seeks to improve the lives of people around the world by being inclusive in its development and humanitarian assistance efforts. In so doing, USAID recognizes that every person is instrumental in the transformation of their own societies, with the end result that each and every person is recognized and equally valued without regard to artificial and discriminatory distinctions. The inclusion, protection, and empowerment of all persons is critical because drawing on the full contributions of the entire population leads to more effective, comprehensive, and sustainable development results.

    Nondiscrimination is the basic foundation of USAID's inclusive development approach; as such, all USAID programs seek to ensure access for all potential beneficiaries within the scope of the contract without discrimination. Contractors must adhere to this by implementing the activities as outlined in the contract SOWs. Nondiscrimination is a critical foundation for protecting and promoting the human rights of all persons. In addition, nondiscrimination ensures equitable access to USAID programs. Effective nondiscrimination practices support USAID's principles of inclusion and equal access and help to ensure that USAID programs empower and effectively reach women and girls; marginalized ethnic and religious populations; indigenous peoples; internally displaced persons; persons with disabilities; youth and the elderly; lesbian, gay, bisexual, transgender, and intersex individuals; and other socially marginalized individuals and peoples unique to the country or regional context.

    In recent years, the Government has made multiple pronouncements of policy in many areas reflecting its emphasis on equity, fairness, and human dignity—effective nondiscrimination is a means toward achieving all of these. For example, in 2011, the White House issued E.O. 13563, “Improving Regulation and Regulatory Review,” to update all agencies on factors to consider when issuing rules; in addition to quantitative factors, it advised that the qualitative values of equity, fairness, and human dignity are important considerations. Additionally, a 2011 Presidential Memorandum, “International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons,” directs all agencies engaged abroad to advance nondiscrimination. This proposed rule addressing discrimination in the provision of supplies or services is consistent with the values that animate the above.

    II. Discussion

    This rulemaking would revise (48 CFR) AIDAR to add a new clause at 752.7038 entitled “Nondiscrimination against End-Users of Supplies or Services.” The clause, applicable to all solicitations, contracts, and subcontracts at any tier, prohibits contractors and subcontractors from discriminating against beneficiaries or potential beneficiaries (i.e., those individuals intended to receive the benefits of the award, whether goods or services) on the basis of any characteristics not expressly stated in the award.

    This proposed rule is published for public comment pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 1707).

    The Administrative Procedure Act (APA) provides an exception for “matter[s] relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the requirement of public notice and comment before a final rulemaking. 5 U.S.C. 553(a)(2). This rulemaking is directly related to contracts.

    The Office of Federal Procurement Policy Act, 41 U.S.C. 1707, imposes a separate requirement for public comment prior to final rulemaking for any “procurement policy, regulation, procedure, or form . . . if it (A) relates to the expenditure of appropriated funds; and (B)(i) has a significant effect beyond the internal operating procedures of the agency issuing [it]; or (ii) has a significant cost or administrative impact on contractors or offerors.” This proposed rulemaking is related to procurement policy and will amend USAID's Acquisition Regulation (AIDAR).

    Per subsection (b) of this statute, USAID is publishing this proposed rulemaking for a comment period of 30 days.

    The purpose of this rulemaking is to ensure adherence to the intent and authorities in the FAA, and other statutes related to humanitarian assistance and international development. The stated intent of the FAA is to help people, without regard to irrelevant and discriminatory distinctions among them. This intent is reflected in many places in the statute. The first words of the Act set out that it seeks to promote United States interests “by assisting peoples of the world.” Congress explained its intent thusly in FAA section 101: “[T]he Congress reaffirms the traditional humanitarian ideals of the American people and renews its commitment to assist people in developing countries to eliminate hunger, poverty, illness, and ignorance.”

    A survey of FAA provisions relevant to USAID awards reflects that they focus on development and humanitarian assistance needs and effectiveness toward meeting them. For example, FAA section 103, on agriculture, rural development, and nutrition, suggests assistance should focus on alleviating poverty. FAA section 104, on health-related assistance, suggests limited targeting of activities to the specialized health needs of children, infants, and mothers. FAA section 491, on international disaster assistance, contemplates “prompt United States assistance to alleviate human suffering” and emphasizes only that the implementing agency “shall insure that the assistance provided by the United States shall, to the greatest extent possible, reach those most in need of relief and rehabilitation as a result of natural and manmade disaster.”

    In some contexts, such as assistance for child survival, the foreign assistance authorities contemplate a focus on women and children, but that is a matter of programmatic need and effectiveness. There is no context where excluding individuals from assistance based on any of the types of discrimination proscribed by this clause, outside the scope of the award, would have a positive effect on implementing USAID's foreign assistance authorities.

    The main effect of this clause is to ensure that USAID's policy and practice of non-discrimination in planning projects and activities is followed through to completion by the contractors that implement them. Its impact on contractors and offerors is to remind them to follow the terms and conditions of the contract, including the implementation of the SOW as designed, and to refrain from the types of discrimination described in the clause. In itself, the proposed clause serves as a reminder to contractors and offerors of USAID's long-standing, pre-existing expectations based on USAID's programmatic and planning priorities and authorities.

    III. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess the costs and benefits of the intended regulation. E.O. 13563 allows that in making this assessment, an agency “may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” The estimated costs of this rulemaking do not exceed the threshold of economic significance (i.e., an annual effect on the economy of $100 million or more). However, the proposed rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866 and therefore it has been reviewed by the Office of Management and Budget.

    This rule provides a benefit by promoting non-discrimination, which itself promotes programmatic efficiency, with very little additional administrative burden for the affected entities, USAID contractors. It does not ask them to carry out activities beyond those in their contract SOWs and terms and conditions; it does not ask them to alter the manner in which they conduct the work as set out in their contracts. In fact, it reminds them to stay within those instructions. The only potential cost the Agency could identify for contractors and subcontractors is for minimal training, to the extent that contractors do not already proscribe discrimination as part of the normal conduct of their business.

    USAID awards approximately 1,300 contracts/task orders annually. As a practical matter for these current contracts, even absent this clause, if for example a contract specified the provision of food parcels in a certain community, the contractor could not, on its own, decide that only certain members of that community should receive the food parcels or that certain members should be excluded.

    Including this clause in all new contracts and subcontracts going forward provides an explicit reminder of USAID's expectation that its contractors not discriminate against any protected group or individual, and is particularly important in countries where stigma and discrimination toward certain groups is tolerated or officially endorsed by the government. The benefits of the rule would be to expressly reinforce notions of equity, fairness, and human dignity under Federal Government contracts.

    Contractors responding to a solicitation (e.g. request for proposals (RFP) or invitation for bid (IFB)) would further be on notice not to include any discriminatory criteria in their response to a solicitation, absent specific programmatic justification in the SOW to do so.

    IV. Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. It requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities.

    In fiscal year 2015, 330 small businesses received USAID funds. In fiscal years 2011, 2012, 2013, and 2014 the 391, 384, 349, and 363 small businesses received USAID funds, respectively. The requirement this rule would impose on small businesses is no different than the requirement for other entities: Contracts or subcontracts awarded to them will include a provision reminding them not to discriminate. Beyond adding a brief reminder or discussion of this now explicit requirement to existing trainings on business ethics and conduct they provide to their staff, as already required by FAR 3.10, we do not estimate that this will impose a significant additional cost. As with all contractors, the employees of small businesses will be expected to be mindful of the principles of equity, fairness, and human dignity when performing the work under their contracts; as they have always been. The additional effort by small businesses (a matter of a few minutes of discussion) is so de minimis that we do not estimate that this will impose more than a negligible cost.

    There are no reporting or recordkeeping requirements associated with this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. There is currently no other Federal rule addressing discrimination of recipients of supplies or services pursuant to a Federal Government contract. There were no significant alternatives identified that would meet the objective of the rule.

    In light of the above analysis, the USAID Chief Acquisition Officer certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    V. Paperwork Reduction Act

    This rule does not include a reporting or information collection requirement. Therefore, USAID has determined that this rule does not impose any new or revised reporting or disclosure requirements that would be considered collections of information requiring Office of Management and Budget approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 48 CFR Part 752

    Government procurement.

    For the reasons discussed in the preamble, USAID amends 48 CFR Chapter 7 as set forth below:

    1. The authority citation for 48 CFR Chapter 7 part 752 continues to read as follows: Authority:

    Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.

    SUBCHAPTER H—CLAUSES AND FORMS PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 2. Add Section 752.7038 to read as follows:
    § 752.7038 Nondiscrimination against End-Users of Supplies or Services.

    The following clause must be inserted in section I of all solicitations and resulting contracts.

    Nondiscrimination Against End-Users of Supplies or Services (Date)

    (a) USAID policy requires that the contractor not discriminate against any end-user of the contract supplies or services (i.e., the beneficiaries of the supplies or services) in implementation of this award, such as, but not limited to, by withholding, adversely impacting, or denying equitable access to the supplies or services (benefits) provided through this contract on the basis of any factor not expressly stated in the award. This may include, for example, race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, disability, age, genetic information, marital status, parental status, political affiliation, or veteran's status. Nothing in this clause is intended to limit the ability of a contractor to target activities toward the assistance needs of certain populations as defined in the contract.

    (b) The Contractor must insert this clause, including this paragraph, in all subcontracts under this contract.

    (End of clause)
    Dated: August 8, 2016. Sunil Xavier, Acting Chief Acquisition Officer.
    [FR Doc. 2016-19716 Filed 8-19-16; 8:45 am] BILLING CODE 6116-01-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 269 [Docket No. FRA-2016-0023, Notice No. 3] RIN 2130-AC60 Competitive Passenger Rail Service Pilot Program AGENCY:

    Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).

    ACTION:

    Proposed rule; notice of public hearing and extension of comment period.

    SUMMARY:

    On June 22, 2016, FRA published a Notice of Proposed Rulemaking (NPRM) that would implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes operated by Amtrak. FRA is announcing a public hearing to provide interested persons an opportunity to provide oral comments on the proposal. FRA is also announcing an extension of the comment period for this proceeding to allow time for interested parties to submit written comments in response to views or information provided at the public hearing.

    DATES:

    A public hearing will be held on September 7, 2016, at 1:45 p.m. in Washington, DC. The comment period for the NPRM published on June 22, 2016, (81 FR 40624) is open through August 22, 2016. Comments in response to views or information provided at the public hearing must be received by October 7, 2016.

    ADDRESSES:

    Public Hearing. The public hearing will be held at the U.S. Department of Transportation, 1200 New Jersey Avenue SE., Conference Center Room 7, Washington, DC 20590.

    Comments. You may submit comments identified by Docket Number FRA-2016-0023 by any of the following methods:

    Online: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590.

    Hand Delivery: 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

    Instructions: All submissions must include the agency name, docket name, and docket number or Regulatory Identification Number (RIN) for this rulemaking (RIN 2130-AC60). FRA will post all comments received without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information about any submitted petitions, comments, or materials.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to the 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 FURTHER INFORMATION CONTACT:

    Brandon White, Office of Railroad Policy and Development, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-1327, [email protected], or Zeb Schorr, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6072.

    SUPPLEMENTARY INFORMATION:

    Interested parties are invited to present oral statements and to offer information and views at the hearing. The hearing will be informal and will be conducted by a representative FRA designates under FRA's Rules of Practice (49 CFR 211.25). The hearing will be a non-adversarial proceeding. Therefore, there will be no cross examination of persons presenting statements or offering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements are completed those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order the initial statements were made. FRA will announce additional procedures necessary to conduct the hearing, at the hearing. The purpose of this hearing is to receive oral comments in response to an NPRM for a competitive passenger rail service pilot program. FRA will add a transcript of the discussions to the public docket in this proceeding.

    Public Participation Procedures. Any person wishing to make a statement at the hearing should notify Mr. White by telephone, email, or in writing, at least 5 working days before the date of the hearing and submit three copies of the oral statement he or she intends to make at the proceeding. The notification should identify the party the person represents, the particular subject(s) the person plans to address, and the time requested. The notification should also provide the participant's mailing address and other contact information. FRA reserves the right to limit participation in the hearing of persons who fail to provide such notification. FRA also reserves the right to limit the duration of presentations if necessary to afford all persons with the opportunity to speak. For information on facilities or services for persons with disabilities, or to request special assistance at the hearing, contact FRA Program Analyst, Mr. Kenton Kilgore, by telephone, email, or in writing, at least at least 5 working days before the date of the hearing. Mr. Kilgore can be reached at Federal Railroad Administration, Office of Railroad Safety, Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC 20590; (202) 493-6286; or [email protected]

    Extension of Comment Period. The comment period for the NPRM is currently open through August 22, 2016. To accommodate the public hearing and afford interested parties the opportunity to submit comments in response to views or information provided at the public hearing, FRA will extend the comment period. FRA must receive comments in response to views or information provided at the public hearing by October 7, 2016.

    Privacy Act

    Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See http://www.regulations.gov/#!privacyNotice for the privacy notice of www.regulations.gov. Interested parties may also review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. 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.

    Issued in Washington, DC, on August 16, 2016. Jamie Rennert, Office Director, Office of Program Delivery.
    [FR Doc. 2016-19910 Filed 8-19-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 28 and 29 [Docket No. FWS-HQ-NWRS-2012-0086; FXRS12610900000-167-FF09R24000] RIN 1018-AX36 Management of Non-Federal Oil and Gas Rights AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; availability of Final Environmental Impact Statement.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), make available the final environmental impact statement (EIS) on regulations governing the exercise of non-Federal oil and gas rights outside of Alaska in order to improve our ability to protect refuge resources, visitors, and the general public's health and safety from potential impacts associated with non-Federal oil and gas operations located within refuges.

    DATES:

    The Service will execute a Record of Decision no sooner than 30 days from the date of publication of the notice of availability of the FEIS by the Environmental Protection Agency.

    ADDRESSES:

    Copies of the FEIS will be available for public review at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html and at www.regulations.gov at Docket No. FWS-HQ-NWRS-2012-0086.

    FOR FURTHER INFORMATION CONTACT:

    Scott Covington, U.S. Fish and Wildlife Service, Division of Natural Resources and Planning, MS: NWRS, 5275 Leesburg Pike, Falls Church, Virginia 22041; telephone 703-358-2427. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. Further contact information can be found at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html.

    SUPPLEMENTARY INFORMATION:

    Under the authority of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and the Department of the Interior regulations that implement NEPA (part 46 of title 43 of the Code of Federal Regulations) and the National Wildlife Refuge System Administration Act, as amended by the National Wildlife Refuge System Improvement Act (16 U.S.C. 668dd et seq.), we issue this supplementary document. The Environmental Protection Agency will publish similar notification of this action in the Federal Register.

    Background

    On February 24, 2014, we issued an advance notice of proposed rulemaking (ANPR) (79 FR 10080) to assist us in developing a proposed rule on managing activities associated with non-Federal oil and gas development on lands and waters of the National Wildlife Refuge System (NWRS). Non-Federal oil and gas development refers to oil and gas activities associated with any private, state, or tribally owned mineral interest where the surface estate is administered by the Service as part of the Refuge System. The ANPR had a 60-day comment period, ending April 25, 2014. On June 9, 2014, we reopened the comment period for another 30 days, ending July 9, 2014 (79 FR 32903). The ANPR requested the public to focus their comments on seven topics identified as major areas of concern: (1) Plans of Operations and Special Use Permits; (2) Operating Standards; (3) Financial Assurances; (4) Access Fees; (5) Noncompliance; (6) Existing Operations; and (7) Impacts from the Proposed Rulemaking.

    We published a proposed rule on December 11, 2015 (80 FR 77200), to revise the regulations governing the exercise of non-Federal oil and gas rights located within NWRS units, and we announced the availability of a draft EIS. The comment period closed February 9, 2016. We now announce the availability of the FEIS.

    The FEIS evaluates the impacts of three alternatives, including the following alternative elements:

    • Requirement that oil operators proposing new oil and gas development (e.g., drilling a well) obtain an operations permit.

    • Requirement of financial assurance (bonding). Financial assurance would be equal to the reasonable estimated cost of site reclamation.

    • Requirement that all operations, regardless of status, obtain a reclamation permit (including bonding) once that operation ceases to be economically productive.

    • Improving enforcement authority by assimilating State oil and gas laws and regulations. Law enforcement staff would have authority to write citations for noncompliance with State regulations, primarily State regulations addressing surface impacts.

    • Clarifying our authority to permit an operator access on NWRS units outside the boundary of an operator's mineral right.

    • Clarifying the regulations to make it easier to identify an operator's information requirements and operating standards that apply to each type of operation.

    Dated: July 29, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-19519 Filed 8-19-16; 8:45 am] BILLING CODE 4333-15-P
    81 162 Monday, August 22, 2016 Notices DEPARTMENT OF AGRICULTURE Office of Tribal Relations, Council for Native American Farming and Ranching AGENCY:

    Office of Tribal Relations, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice announces a forthcoming meeting of The Council for Native American Farming and Ranching (CNAFR), a public advisory committee of the Office of Tribal Relations (OTR). Notice of the meetings are provided in accordance with section 10(a)(2) of the Federal Advisory Committee Act, as amended, (5 U.S.C. Appendix 2). This will be the fourth meeting held during fiscal year 2016 and will consist of, but not be limited to: Hearing public comments, update of USDA programs and activities, and discussion of committee priorities. This meeting will be open to the public.

    DATES:

    The teleconference meeting will be held on September 1, 2016. The meeting will be open to the public with time set aside for public comment at approximately 1:30 p.m. to 2:30 p.m. The OTR will make the agenda available to the public via the OTR Web site http://www.usda.gov/tribalrelations no later than 10 business days before the meeting and at the meeting.

    ADDRESSES:

    The meeting will be conducted using teleconference technology. This meeting will not be convened in person. Participants interested in joining this meeting may dial 1-877-369-5243 or 1-617-668-3633. Any modification to this number will be accessible online at www.usda.gov/tribalrelations.

    Written Comments: Written comments may be submitted to: Josiah Griffin, Acting Designated Federal Officer, 1400 Independence Ave. SW., Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Questions should be directed to the CNAFR Contact Person: Josiah Griffin, Acting Designated Federal Officer, 1400 Independence Ave. SW., Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2), USDA established an advisory council for Native American farmers and ranchers. The CNAFR is a discretionary advisory committee established under the authority of the Secretary of Agriculture, in furtherance of the Keepseagle v. Vilsack settlement agreement that was granted final approval by the District Court for the District of Columbia on April 28, 2011.

    The CNAFR will operate under the provisions of the FACA and report to the Secretary of Agriculture. The purpose of the CNAFR is (1) to advise the Secretary of Agriculture on issues related to the participation of Native American farmers and ranchers in USDA loan and grant programs; (2) to transmit recommendations concerning any changes to USDA regulations or internal guidance or other measures that would eliminate barriers to program participation for Native American farmers and ranchers; (3) to examine methods of maximizing the number of new farming and ranching opportunities created by USDA loan and grant programs through enhanced extension and financial literacy services; (4) to examine methods of encouraging intergovernmental cooperation to mitigate the effects of land tenure and probate issues on the delivery of USDA programs; (5) to evaluate other methods of creating new farming or ranching opportunities for Native American producers; and (6) to address other related issues as deemed appropriate.

    Interested persons may present views, orally or in writing, on issues relating to agenda topics before the CNAFR. Written submissions may be submitted to the contact person on or before August 29, 2016. Oral presentations from the public will be heard approximately 1:30 p.m. to 2:30 p.m. on September 1, 2016. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the issue they wish to present and the names and addresses of proposed participants by August 29, 2016. All oral presentations will be given three (3) to five (5) minutes depending on the number of participants.

    The OTR will also make the agenda available to the public via the OTR Web site http://www.usda.gov/tribalrelations no later than 10 business days before the meeting and at the meeting. The minutes from the meeting will be posted on the OTR Web site. OTR welcomes the attendance of the public at the CNAFR meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Josiah Griffin, at least 5 business days in advance of the meeting.

    Leslie Wheelock, Director, Office of Tribal Relations.
    [FR Doc. 2016-19929 Filed 8-19-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Forest Service Black Hills National Forest Advisory Board AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Black Hills National Forest Advisory Board (Board) will meet in Rapid City, South Dakota. The Board is established consistent with the Federal Advisory Committee Act of 1972 (5 U.S.C. App. II), the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.), the National Forest Management Act of 1976 (16 U.S.C. 1612), and the Federal Public Lands Recreation Enhancement Act (Pub. L. 108-447). Additional information concerning the Board, including the meeting summary/minutes, can be found by visiting the Board's Web site at: http://www.fs.usda.gov/main/blackhills/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on Wednesday, September 21, 2016, at 1:00 p.m.

    All meetings are subject to cancellation. For updated status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Mystic Ranger District, 8221 South Highway 16, Rapid City, South Dakota.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses, when provided, are placed in the record and available for public inspection and copying. The public may inspect comments received at the Black Hills National Forest Supervisor's Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Scott Jacobson, Board Coordinator, by phone at 605-440-1409 or by email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to provide:

    (1) Rushmore Connector Trail update;

    (2) Proposed Land Exchange—Spearfish Canyon/Bismarck Lake;

    (3) Teckla-Osage 230 kV Transmission Project update;

    (4) Black Hills Resilient Landscapes Project update;

    (5) BHNF Timber Program update (FY 16/FY 17);

    (6) Forest Health Working Group update;

    (7) Recreation Facilities Working Group update; and

    (8) Non-motorized Trails/Over Snow Working Group update.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by September 12, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Board may file written statements with the Board's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Scott Jacobson, Black Hills National Forest Supervisor's Office, 1019 North Fifth Street, Custer, South Dakota 57730; by email to [email protected], or via facsimile to 605-673-9208.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: August 15, 2016. Jim Zornes, Acting Forest Supervisor.
    [FR Doc. 2016-19932 Filed 8-19-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service [Docket No. NRCS-2016-006] Notice of Meeting of the Agricultural Air Quality Task Force AGENCY:

    Natural Resources Conservation Service (NRCS), USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The U.S. Department of Agriculture (USDA) Agricultural Air Quality Task Force (AAQTF) will meet for discussions on critical air quality issues relating to agriculture. Special emphasis will be placed on obtaining a greater understanding about the relationship between agricultural production and air quality. The meeting is open to the public. A draft agenda is included in this notice.

    DATES:

    The meeting will convene at 8:00 a.m. PDT on Thursday and Friday September 8-9, 2016. A public comment period will be held on the morning of September 9, 2016. The meeting will end at approximately noon on September 9, 2016.

    ADDRESSES:

    The meeting will be held at the Holiday Inn Sacramento—Capitol Plaza, 300 J Street, Sacramento, California 95814.

    FOR FURTHER INFORMATION CONTACT:

    Questions and comments should be directed to Dr. Greg Johnson, Designated Federal Official, USDA, NRCS, 2901 East Gate City Boulevard, Suite 2100, Greensboro, North Carolina 27401; telephone: (336) 370-3352; fax: (336) 273-8132; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2. Additional information concerning AAQTF, including revised agendas for the September 8-9, 2016, meeting that occurs after this Federal Register Notice is published, may be viewed at: www.nrcs.usda.gov/wps/portal/nrcs/detail/national/air/taskforce.

    Procedural: This meeting is open to the public. On September 9, 2016, the public will have an opportunity to provide up to 5 minutes of input to the AAQTF.

    Information on Services for Individuals With Disabilities: For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, please contact Greg Johnson (contact information listed above). USDA prohibits discrimination in its programs and activities on the basis of race, color, national origin, gender, religion, age, sexual orientation, or disability. Additionally, discrimination on the basis of political beliefs and marital or family status is also prohibited by statutes enforced by USDA. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternate means for communication of program information (Braille, large print, audio tape, etc.) should contact the USDA's Target Center at (202) 720-2000 (voice and TDD).

    Signed August 12, 2016, in Washington, DC. Jason A. Weller, Chief. Draft Agenda AAQTF Meeting September 8-9, 2016, Sacramento, California A. Welcome Remarks and Introductions B. USDA and California Air Resources Board Leadership Remarks C. Particulate Matter Research D. USDA Climate Change Building Blocks, Greenhouse Gas Mitigation, and U.S. Agriculture E. Update on Agricultural Air Quality Regulatory Issues at the Environmental Protection Agency F. Updates from USDA Agencies (Forest Service, NRCS, National Institute of Food and Agriculture, and Agricultural Research Service) G. AAQTF Subcommittee Formation and Break-Out Sessions H. Reactive Nitrogen Guest Speaker I. Public Input (Note: Individual presentations will be limited to 5 minutes.)

    * Please note that the timing of events in the agenda is subject to change to accommodate changing schedules of expected speakers and or extended discussions.

    [FR Doc. 2016-19872 Filed 8-19-16; 8:45 am] BILLING CODE 3410-16-P
    DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service [Docket No. NRCS-2016-0004] Notice of Proposed Changes to the National Handbook of Conservation Practices for the Natural Resources Conservation Service AGENCY:

    Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture (USDA).

    ACTION:

    Notice of availability of proposed changes to NRCS' National Handbook of Conservation Practices for public review and comment.

    SUMMARY:

    Notice is hereby given of the intention of NRCS to issue a series of revised conservation practice standards in the National Handbook of Conservation Practices. These standards include Anionic Polyacrylamide (PAM) Application (Code 450), Compost Facility (Code 317), Constructed Wetland (Code 656), Critical Area Planting (Code 342), Drainage Water Management (Code 554), Feed Management (Code 592), Field Border (Code 386), Filter Strip (Code 393), Irrigation Land Leveling (Code 464), Irrigation System, Surface and Subsurface (Code 443), Residue and Tillage Management, No Till (Code 329), Residue and Tillage Management, Reduced Till (Code 345), and Stream Habitat Improvement (Code 395). NRCS State Conservationists who choose to adopt these practices for use within their States will incorporate them into section IV of their respective electronic Field Office Technical Guide. These practices may be used in conservation systems that treat highly erodible land (HEL) or on land determined to be a wetland. Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 requires NRCS to make available for public review and comment all proposed revisions to conservation practice standards used to carry out HEL and wetland provisions of the law.

    DATES:

    Effective Date: This is effective August 22, 2016.

    Comment Date: Submit comments on or before September 21, 2016. Final versions of these new or revised conservation practice standards will be adopted after the close of the 30-day period and after consideration of all comments.

    ADDRESSES:

    Comments should be submitted, identified by Docket Number NRCS-2016-0004, using any of the following methods:

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

    Mail or hand-delivery: Public Comments Processing, Attention: Regulatory and Agency Policy Team, Strategic Planning and Accountability, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Building 1-1112D, Beltsville, Maryland 20705.

    NRCS will post all comments on http://www.regulations.gov. In general, personal information provided with comments will be posted. If your comment includes your address, phone number, email, or other personal identifying information, your comments, including personal information, may be available to the public. You may ask in your comment that your personal identifying information be withheld from public view, but this cannot be guaranteed.

    FOR FURTHER INFORMATION CONTACT:

    Terri Ruch, Acting National Environmental Engineer, Conservation Engineering Division, Natural Resources Conservation Service, 1400 Independence Avenue SW., South Building, Room 6133, Washington, DC 20250.

    Electronic copies of the proposed revised standards are available through http://www.regulations.gov by accessing Docket No. NRCS-2016-0004. Alternatively, copies can be downloaded or printed from the following Web site: http://go.usa.gov/TXye. Requests for paper versions or inquiries may be directed to Emil Horvath, National Practice Standards Review Coordinator, Natural Resources Conservation Service, Central National Technology Support Center, 501 West Felix Street, Fort Worth, Texas 76115.

    SUPPLEMENTARY INFORMATION:

    The amount of the proposed changes varies considerably for each of the conservation practice standards addressed in this notice. To fully understand the proposed changes, individuals are encouraged to compare these changes with each standard's current version as shown at: http://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/technical/cp/ncps/?cid=nrcs143_026849. To aid in this comparison, the following are highlights of some of the proposed revisions to each standard.

    Anionic PAM Application (Code 450): The revision adds a purpose to the standard, which is to “improve soil surface infiltration rate and minimize soil crusting to allow for uniform plant growth on irrigated land.” There was also criteria for this purpose added to the standard which sets the PAM application rate to not exceed 4 pounds per acre, as well as criteria for mixing and injecting PAM.

    Compost Facility (Code 317): Revised language to improve readability and clarify intent of criteria. Criteria was revised to include facility siting and design language. Additional sections, “Criteria for Mechanically Assisted Composting” and “Power Supply” were added.

    Constructed Wetland (Code 656): Revised language to improve readability and clarify intent of criteria. Additional conditions related to bioreactors and saturated buffers were added. Added criteria under the heading “Additional Criteria Applicable to Constructed Wetlands for Water Quality Improvement” to use the design procedure recognized by the regulatory and academic conservation partners, and to select a design hydraulic retention time that will achieve the intended water quality results. Added consideration to address odor concerns near populated areas.

    Critical Area Planting (Code 342): Revised language to improve readability and clarify intent of criteria. The purpose of stabilizing areas being degraded by the concentration of salts or other chemicals was deleted and is covered in other conservation practice standards. Critical slope criteria to stabilize banks, shorelines, and other areas was changed from 2:1 slopes to 3:1 slopes.

    Drainage Water Management (Code 554): The entire document was edited for clarity. Two purposes were removed: (1) Reduce wind erosion or particulate matter (dust) emissions and (2) provide seasonal wildlife habitat. Significant additions and clarifications were made to most of the “General Criteria,” particularly instructions under “Control Elevation” and “Control Zone.” Similarly, changes were made to “Additional Criteria to Reduce Nutrient, Pathogen, and Pesticide Loading;” and “Additional Criteria to Improve Productivity, Health, and Vigor of Plants.” The “Considerations” and “Plans and Specifications” sections were rewritten.

    Feed Management (Code 592): Changes in format, stronger emphasis on feed management for pathogen control and odor and greenhouse gas mitigation, feed management by grouping of animals, as well as select wording changes are incorporated. The new version should be easier to use by NRCS field staff and easier to understand by producers.

    Field Border (Code 386): Clarified the “Purpose” statements to better align with NRCS resource concerns. Minor edits were made throughout the document for clarification purposes. Added the purpose: “reduce excessive sediment in surface waters.”

    Filter Strip (Code 393): Practice purposes were revised. Minor editing was made throughout the document to clarify criteria. The noxious or invasive plants language was removed since this is NRCS policy for all matters. Added criteria to remove phosphorus by harvesting above-ground biomass at least once each year.

    Irrigation Land Leveling (Code 464): This standard was updated to be more readable and formatted according to current standards. A “Design” section was added to the standard to provide current reference information. The “Operation and Maintenance” section was expanded to include more detailed information to the operator to ensure the practice will last longer.

    Irrigation System, Surface, and Subsurface (Code 443): Very few substantial changes. Clarifying words and grammatical corrections make up the majority of changes. A criteria was added in the “Application Efficiency and Distribution Uniformity” section that directs users to the current technical guidance.

    Residue and Tillage Management, No Till (Code 329): Practice purposes edited to align with NRCS resource concerns. Added the purpose: “reduce excessive sediment in surface waters.” Made minor edits throughout the document to improve clarity. Removed the 2,000 pounds per acre of residue to increase plant available moisture as this is no longer needed for the erosion prediction tools in use at this time. The needed amount of residue now states 60 percent.

    Residue and Tillage Management, Reduced Till (Code 345): Added the purpose: “reduce sheet, rill, and wind erosion, and excessive sediment in surface waters.” Made minor edits to improve clarity throughout the document. Added the criteria to document and determine the purpose to reduce sheet, rill, and wind erosion, and excessive sediment in surface waters.

    Stream Habitat Improvement (Code 395): The definition and purpose are simplified to better focus on habitat. Language was added to better coordinate with other conservation practices. Application of the practice within a watershed context is now required as a specified criterion rather than as a consideration. Revised language as needed to improve readability and clarify intent of criteria.

    Signed this 12th day of August 2016, in Washington, DC. Jason A. Weller, Chief, Natural Resources Conservation Service.
    [FR Doc. 2016-19866 Filed 8-19-16; 8:45 am] BILLING CODE 3410-16-P
    DEPARTMENT OF AGRICULTURE Rural Housing Service Submission for OMB Review; Comment Request August 17, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by September 21, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Rural Housing Service

    Title: Form RD 410-8, Application Reference Letter (A Request for Credit Reference).

    OMB Control Number: 0575-0091.

    Summary of Collection: The Rural Housing Service (RHS), under Section 502 of Title V of the Housing Act of 1949, as amended, provides financial assistance to construct, improve, alter, repair, replace, or rehabilitate dwellings, which will provide modest, decent, safe, and sanitary housing to eligible individuals in rural areas. Form RD 410-8, Applicant Reference Letter, provides credit information and is used by RHS to obtain information about an applicant's credit history that might not appear on a credit report.

    Need and Use of the Information: Using form RD-410-8, RHS will collect information to supplement or verify other debts when a credit report is limited and unavailable to determine the applicant's eligibility and creditworthiness for RHS loans and grants. It can be used to document an ability to handle credit effectively for applicants who have not used sources of credit that appear on a credit report. The form provides RHS with relevant information about the applicant's creditworthiness and is used to make better creditworthiness decisions.

    For the form to retain the OMB number, this collection is for approval of the form itself. The burden for this form will be accounted for within the individual RD program collection packages using the form.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 1.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 1.

    Charlene Parker, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-19942 Filed 8-19-16; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF COMMERCE Indirect Cost Rates for the Damage Assessment, Remediation, and Restoration Program for Fiscal Year 2015 AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The National Oceanic and Atmospheric Administration's (NOAA's) Damage Assessment, Remediation, and Restoration Program (DARRP) is announcing new indirect cost rates on the recovery of indirect costs for its component organizations involved in natural resource damage assessment and restoration activities for fiscal year (FY) 2015. The indirect cost rates for this fiscal year and date of implementation are provided in this notice. More information on these rates and the DARRP policy can be found at the DARRP Web site at www.darrp.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    For further information, contact LaTonya Burgess at 301-713-4248, ext. 211, by fax at 301-713-4389, or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The mission of the DARRP is to restore natural resource injuries caused by releases of hazardous substances or oil under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq.) and the Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et seq.), and to support restoration of physical injuries to National Marine Sanctuary resources under the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.). The DARRP consists of three component organizations: The Office of Response and Restoration (ORR) within the National Ocean Service; the Restoration Center within the National Marine Fisheries Service; and the Office of the General Counsel Natural Resources Section (GCNRS). The DARRP conducts Natural Resource Damage Assessments (NRDAs) as a basis for recovering damages from responsible parties, and uses the funds recovered to restore injured natural resources.

    Consistent with federal accounting requirements, the DARRP is required to account for and report the full costs of its programs and activities. Further, the DARRP is authorized by law to recover reasonable costs of damage assessment and restoration activities under CERCLA, OPA, and the NMSA. Within the constraints of these legal provisions and their regulatory applications, the DARRP has the discretion to develop indirect cost rates for its component organizations and formulate policies on the recovery of indirect cost rates subject to its requirements.

    The DARRP's Indirect Cost Effort

    In December 1998, the DARRP hired the public accounting firm Rubino & McGeehin, Chartered (R&M) to: Evaluate the DARRP cost accounting system and allocation practices; recommend the appropriate indirect cost allocation methodology; and determine the indirect cost rates for the three organizations that comprise the DARRP. A Federal Register notice on R&M's effort, their assessment of the DARRP's cost accounting system and practice, and their determination regarding the most appropriate indirect cost methodology and rates for FYs 1993 through 1999 was published on December 7, 2000 (65 FR 76611).

    R&M continued its assessment of DARRP's indirect cost rate system and structure for FYs 2000 and 2001. A second federal notice specifying the DARRP indirect rates for FYs 2000 and 2001 was published on December 2, 2002 (67 FR 71537).

    In October 2002, DARRP hired the accounting firm of Cotton and Company LLP (Cotton) to review and certify DARRP costs incurred on cases for purposes of cost recovery and to develop indirect rates for FY 2002 and subsequent years. As in the prior years, Cotton concluded that the cost accounting system and allocation practices of the DARRP component organizations are consistent with federal accounting requirements. Consistent with R&M's previous analyses, Cotton also determined that the most appropriate indirect allocation method continues to be the Direct Labor Cost Base for all three DARRP component organizations. The Direct Labor Cost Base is computed by allocating total indirect cost over the sum of direct labor dollars, plus the application of NOAA's leave surcharge and benefits rates to direct labor. Direct labor costs for contractors from ERT, Inc. (ERT), Freestone Environmental Services, Inc. (Freestone), and Genwest Systems, Inc. (Genwest) were included in the direct labor base because Cotton determined that these costs have the same relationship to the indirect cost pool as NOAA direct labor costs. ERT, Freestone, and Genwest provided on-site support to the DARRP in the areas of injury assessment, natural resource economics, restoration planning and implementation, and policy analysis. Subsequent federal notices have been published in the Federal Register as follows:

    • FY 2002, published on October 6, 2003 (68 FR 57672) • FY 2003, published on May 20, 2005 (70 FR 29280) • FY 2004, published on March 16, 2006 (71 FR 13356) • FY 2005, published on February 9, 2007 (72 FR 6221) • FY 2006, published on June 3, 2008 (73 FR 31679) • FY 2007 and FY 2008, published on November 16, 2009 (74 FR 58948) • FY 2009 and FY 2010, published on October 20, 2011 (76 FR 65182) • FY 2011, published on September 17, 2012 (77 FR 57074) • FY 2012, published on August 29, 2013 (78 FR 53425) • FY 2013, published on October 14, 2014 (79 FR 61617) • FY 2014, published on December 17, 2015 (80 FR 78718) Cotton's recent reports on these indirect rates can be found on the DARRP Web site at www.darrp.noaa.gov.

    Cotton reaffirmed that the Direct Labor Cost Base is the most appropriate indirect allocation method for the development of the FY 2015 indirect cost rates.

    The DARRP's Indirect Cost Rates and Policies

    The DARRP will apply the indirect cost rates for FY 2015 as recommended by Cotton for each of the DARRP component organizations as provided in the following table:

    DARRP Component
  • organization
  • FY 2015
  • Indirect rate
  • %
  • Office of Response and Restoration (ORR) 151.18 Restoration Center (RC) 60.91 General Counsel, Natural Resources Section (GCNRS) 32.75
    These rates are based on the Direct Labor Cost Base allocation methodology.

    The FY 2015 rates will be applied to all damage assessment and restoration case costs incurred between October 1, 2014 and September 30, 2015. DARRP will use the FY 2015 indirect cost rates for future fiscal years, beginning with FY 2016, until subsequent year-specific rates can be developed.

    For cases that have settled and for cost claims paid prior to the effective date of the fiscal year in question, the DARRP will not re-open any resolved matters for the purpose of applying the revised rates in this policy for these fiscal years. For cases not settled and cost claims not paid prior to the effective date of the fiscal year in question, costs will be recalculated using the revised rates in this policy for these fiscal years. Where a responsible party has agreed to pay costs using previous year's indirect rates, but has not yet made the payment because the settlement documents are not finalized, the costs will not be recalculated.

    Dated: August 5, 2016. David Westerholm, Director, Office of Response and Restoration.
    [FR Doc. 2016-19953 Filed 8-19-16; 8:45 am] BILLING CODE 3510-JE-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-25-2016] Foreign-Trade Zone (FTZ) 133—Quad-Cities, Iowa/Illinois; Authorization of Production Activity; Deere & Company; Subzone 133D (Construction and Forestry Equipment); Davenport, Iowa

    On April 15, 2016, Deere & Company submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within Subzone 133D, in Davenport, Iowa.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (81 FR 26200, May 2, 2016). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the Board's regulations, including Section 400.14.

    Dated: August 15, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-20017 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-117-2016] Foreign-Trade Zone 262—Southaven, Mississippi; Application for Subzone; ASICS America Corporation; Byhalia, Mississippi

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Northern Mississippi FTZ, Inc., grantee of FTZ 262, requesting subzone status for the facility of ASICS America Corporation, located in Byhalia, Mississippi. 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 Board (15 CFR part 400). It was formally docketed on August 16, 2016.

    The proposed subzone (49.665 acres) is located at 549 Wingo Road in Byhalia, Mississippi. The proposed subzone would be subject to the existing activation limit of FTZ 262. No authorization for production activity has been requested at this time.

    In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 3, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 17, 2016.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the 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 16, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-20013 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-54-2016] Foreign-Trade Zone 124—Gramercy, Louisiana; Application for Expansion of Subzone 124D; LOOP LLC; Lafourche and St. James Parishes, Louisiana

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Port of South Louisiana, grantee of FTZ 124, requesting an expansion of Subzone 124D on behalf of LOOP LLC. 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 16, 2016.

    Subzone 124D was approved on June 1, 1995 (Board Order 748, 60 FR 30267, June 8, 1995) and expanded on March 29, 2002 (Board Order 1217, 67 FR 17048, April 9, 2002). The subzone currently consists of two sites located in Lafourche and St. James Parishes: Site 1 (520.72 acres total and 37 miles of pipeline) includes the following parcels: Parcel A (10 acres)—Fourchon Booster Station, Highway 1, Fourchon; Parcel B (287 acres)—Clovelly Dome Storage Terminal, Clovelly; Parcel D (27 acres)—Operations Center, 224 E. 101 Place, Cut Office; Parcel E (103.5 acres)—Clovelly Tank Farm, South Lafourche Airport Road, Clovelly; Parcel F (80 acres)—Tank Farm adjacent to Parcel E, Clovelly; and, Parcel G (13.22 acres)—Small Boat Harbor, located on Bayou Lafourche, Port Fourchon; and, Site 2 (124 acres and 55 miles of pipeline)—St. James Terminal, located on Bayou Lafourche, Port Fourchon.

    The applicant is requesting authority to expand Site 1 of the subzone to include a new 16-acre parcel (Parcel H). The new parcel is located at 224 East 101 Place in Cut Off. 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 October 3, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 17, 2016.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: August 16, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-20020 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-823] Silicomanganese From India: Final Results No Shipment Determination of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.

    SUMMARY:

    On May 10, 2016, the Department of Commerce (the Department) published the Preliminary Results of the 2014-2015 administrative review (AR) of the antidumping duty (AD) order on silicomanganese from India. The period of review (POR) is May 1, 2014, through April 30, 2015. We received no comments from interested parties. Therefore, the Department continues to find that Universal Ferro and Allied Chemicals Ltd. (Universal) had no reviewable transactions of subject merchandise to the United States during the POR.

    DATES:

    Effective August 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    David Lindgren at (202) 482-3870; AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On May 10, 2016, the Department published the Preliminary Results of the AR of the AD order on silicomanganese from India.1 We invited interested parties to comment on the Preliminary Results. No party provided comments. The Department has conducted this AR in accordance with section 751(a)(1) of the Tariff Act of 1930, as amended (the Act).

    1See Silicomanganese From India: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015, 81 FR 28826 (May 10, 2016) (Preliminary Results).

    Scope of the Order

    The products subject to the order are all forms, sizes and compositions of silicomanganese, except low-carbon silicomanganese, including silicomanganese briquettes, fines and slag. Silicomanganese is a ferroalloy composed principally of manganese, silicon and iron, and normally contains much smaller proportions of minor elements, such as carbon, phosphorous and sulfur. Silicomanganese is sometimes referred to as ferrosilicon manganese. Silicomanganese is used primarily in steel production as a source of both silicon and manganese. Silicomanganese generally contains by weight not less than 4 percent iron, more than 30 percent manganese, more than 8 percent silicon and not more than 3 percent phosphorous. Silicomanganese is properly classifiable under subheading 7202.30.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Some silicomanganese may also be classified under HTSUS subheading. This scope covers all silicomanganese, regardless of its tariff classification. Although the HTSUS subheadings are provided for convenience and U.S. Customs and Border Protection (CBP) purposes, our written description of the scope remains dispositive.

    The low-carbon silicomanganese excluded from this scope is a ferroalloy with the following chemical specifications: minimum 55 percent manganese, minimum 27 percent silicon, minimum 4 percent iron, maximum 0.10 percent phosphorus, maximum 0.10 percent carbon and maximum 0.05 percent sulfur. Low-carbon silicomanganese is used in the manufacture of stainless steel and special carbon steel grades, such as motor lamination grade steel, requiring a very low carbon content. It is sometimes referred to as ferromanganese-silicon. Low-carbon silicomanganese is classifiable under HTSUS subheading 7202.99.8040.

    Final Determination of No Shipments

    As explained above, in the Preliminary Results, the Department found that Universal did not have reviewable entries during the POR. Also in the Preliminary Results, the Department stated that it is not appropriate to rescind the review with respect to Universal, but rather complete the review with respect to Universal and issue appropriate instructions to CBP based on the final results.2

    2See Preliminary Results, 81 FR at 28826.

    After issuing the Preliminary Results, the Department received no comments from interested parties, and has not received any information that would cause it to alter its preliminary determination. Therefore, for these final results, the Department continues to find that Universal did not have any reviewable entries during the POR. As the Department received no comments or new information for consideration in these final results, the Department has not prepared an Issues and Decision Memorandum for this AR.

    Assessment

    The Department has determined, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.3 The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. Additionally, because the Department determined that Universal had no shipments of subject merchandise during the POR, any suspended entries that entered under Universal's AD case number (i.e., at that exporter's rate) will be liquidated at the all-other rate if there is no rate for the intermediate company(ies) involved in the transaction.4

    3See 19 CFR 351.212(b).

    4See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this AR for all shipments of the subject merchandise 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 Universal, which claimed no shipments, the cash deposit rate will remain unchanged from the rate assigned to Universal in the most recently completed segment of this proceeding; (2) for previously reviewed or investigated companies, the cash deposit rate will continue to be the company-specific rate published in the most recently completed segment of this proceeding in which that manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of subject merchandise; and, (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous segment of this proceeding, the cash deposit rate will be the all-others rate of 17.74 percent, as established in the investigation.5 These deposit requirements, when imposed, shall remain in effect until further notice.

    5See Silicomanganese from India: Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances Determination, 67 FR 15531 (April 2, 2002), as corrected in Notice of Amended Final Determination of Sales at Less than Fair Value and Antidumping Duty Orders: Silicomanganese from India, Kazakhstan, and Venezuela, 67 FR 36149 (May 23, 2002).

    Notifications

    This notice 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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    In accordance with 19 CFR 351.305(a)(3), 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, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or 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 sanctionable violation.

    These final results of this AR and notice are published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213(h).

    Dated: August 15, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-20009 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-036] Certain Biaxial Integral Geogrid Products From the People's Republic of China: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Affirmative Determination of Critical Circumstances, in Part, and Postponement of Final Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (“Department”) preliminarily determines that certain biaxial integral geogrid products (“geogrids”) from the People's Republic of China (“PRC”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”). The period of investigation (“POI”) is July 1, 2015, through December 31, 2015. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Effective August 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Susan Pulongbarit or Julia Hancock, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4031 or (202) 482-1394, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    The Department published the notice of initiation of this investigation on February 16, 2016.1 For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum, which is dated concurrently with this determination and hereby adopted by this notice.2 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and 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 Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content.

    1See Certain Biaxial Integral Geogrid Products From the People's Republic of China: Initiation of Less-Than-Fair-Value Investigation, 81 FR 7755 (February 16, 2016) (“Initiation Notice”).

    2See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance “Decision Memorandum for the Preliminary Determination in the Antidumping Duty Investigation of Certain Biaxial Integral Geogrid Products from the People's Republic of China,” dated concurrently with and hereby adopted by this notice (“Preliminary Decision Memorandum”).

    Scope of the Investigation

    The product covered by this investigation is geogrids from the PRC. For a full description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I.

    Scope Comments

    In accordance with the preamble to the Department's regulations,3 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).4 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice, as well as additional language proposed by the Department. For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum.5 The Department is preliminarily modifying the scope language as it appeared in the Initiation Notice to clarify the definition of the term “molecular orientation” as it relates to geogrids covered by the scope of this investigation. See “Scope of the Investigation,” in Appendix I, which includes the additional clarifying language.

    3See Antidumping Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997).

    4See Initiation Notice, 80 FR at 37229.

    5See Preliminary Decision Memorandum.

    Methodology

    The Department is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (“the Act”). We calculated export prices in accordance with section 772(a) of the Act. Because the PRC is a non-market economy within the meaning of section 771(18) of the Act, we calculated normal value (“NV”) in accordance with section 773(c) of the Act. For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum.

    Preliminary Affirmative Determination of Critical Circumstances, in Part

    On May 2, 2016, Petitioner timely filed an amendment to the Petition, pursuant to section 733(e)(1) of the Act and 19 CFR 351.206(c)(2)(i), alleging that critical circumstances exist with respect to imports of the merchandise under consideration.6 We preliminarily determine that critical circumstances exist for Taian Modern 7 and the PRC-wide entity. However, for BOSTD,8 we preliminarily determine that critical circumstances do not exist. For a full description of the methodology and results of our analysis, see the Preliminary Decision Memorandum.

    6See Letter from Petitioner, “Amendment to Petition for the Imposition of Antidumping and Countervailing Duties: Biaxial Integral Geogrid Products from the People's Republic of China” (May 2, 2016) (“CC Allegation”).

    7 Taian Modem Plastic Co., Ltd. (“Taian Modern”).

    8 BOSTD Geosynthetics Qingdao Ltd. (“BOSTD”).

    Combination Rates

    In the Initiation Notice, the Department stated that it would calculate combination rates for the respondents that are eligible for a separate rate in this investigation. Policy Bulletin 05.1 describes this practice.9

    9See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” (April 5, 2005) (Policy Bulletin 05.1), available on the Department's Web site at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Preliminary Determination

    The Department preliminarily determines that the following weighted-average dumping margins exist:

    Exporter Producer Weighted-
  • average
  • dumping margin
  • (percent)
  • BOSTD Geosynthetics Qingdao Ltd BOSTD Geosynthetics Qingdao Ltd 00.00 Taian Modern Plastic Co., Ltd Taian Modern Plastic Co., Ltd 38.92 PRC-Wide Entity 66.74
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of geogrids from the PRC as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register except for those produced and exported by BOSTD. Because the estimated preliminary weighted-average dumping margin for BOSTD is zero, we are not directing CBP to suspend liquidation of entries of the merchandise it produced and exported.

    Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. We preliminarily find that critical circumstances exist for imports of geogrids from the PRC produced or exported by Taian Modern and the PRC-wide entity. Accordingly, for Taian Modern and the PRC-wide entity, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.

    Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit 10 equal to the weighted-average amount by which the NV exceeds U.S. price as follows: (1) The cash deposit rate for the exporter/producer combination listed in the table above will be the rate identified for that combination in the table; (2) for all combinations of PRC exporters/producers of merchandise under consideration that have not received their own separate rate above, the cash-deposit rate will be the cash deposit rate established for the PRC-wide entity, 66.74 percent; and (3) for all non-PRC exporters of the merchandise under consideration which have not received their own separate rate above, the cash-deposit rate will be the cash deposit rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. These suspension of liquidation instructions will remain in effect until further notice.

    10See Modification of Regulations Regarding the Practice of Accepting Bonds During the Provisional Measures Period in Antidumping and Countervailing Duty Investigations, 76 FR 61042 (October 3, 2011).

    We normally adjust antidumping duty cash deposit rates by the amount of export subsidies, where appropriate. In the companion CVD investigation, we preliminarily found that Taian Modern did not receive export subsidies. Therefore, no offset to Taian Modern's cash deposit rates for export subsidies is necessary.11 With respect to BOSTD, because it is receiving a zero margin, there is no cash deposit rate for BOSTD and therefore no need to make an offset to its' cash deposit rate.12 For the PRC-wide entity, which received an adverse facts available rate based on information contained in the Petition, as an extension of the adverse inference found necessary pursuant to section 776(b) of the Act, the Department has adjusted the PRC-wide entity's AD cash deposit rate by the lowest export subsidy rate determined for any party in the companion CVD proceeding.13 Here, that rate is zero and thus, no adjustment is necessary for the PRC-wide rate.14 15

    11See Countervailing Duty Investigation of Certain Biaxial Integral Geogrid Products From the People's Republic of China: Preliminary Determination and Alignment of Final Determination With Final Antidumping Duty Determination, 81 FR 4292 (June 24, 2016) and accompanying Preliminary Decision Memorandum (“Geogrids CVD Preliminary Determination”) (unchanged in Certain Biaxial Integral Geogrid Products From the People's Republic of China: Amended Preliminary Results of Countervailing Duty Investigation, 81 FR 48384 (July 25, 2016) (“Geogrids Amended CVD Preliminary Determination”)).

    12See Aluminum Extrusions From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Rescission, in Part; 2013-2014, 80 FR 32347 (June 8, 2015) unchanged at Aluminum Extrusions From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014, 80 FR 75060 (December 1, 2015).

    13See, e.g., Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value; Preliminary Affirmative Determination of Critical Circumstances; In Part and Postponement of Final Determination, 80 FR 4250 (January 27, 2015), and accompanying Issues and Decision Memorandum at 35.

    14Id.

    15See Drawn Stainless Steel Sinks from the People's Republic of China: Antidumping Duty Investigation, 77 FR 60673 (October 4, 2012) (“unchanged in Drawn Stainless Steel Sinks form the People's Republic of China: Investigation, Final Determination, 78 FR 13019 (February 26, 2013). Because the lowest export subsidy rate determined for any party in the companion CVD investigation, which is 0.00 percent for Taian Modern, the Department is not adjusting the cash deposit rate applicable to the PRC-wide entity. See Geogrids CVD Preliminary Determination at 31-2 (Foreign Trade Promotion Fund section).

    Pursuant to section 777A(f) of the Act, we normally adjust preliminary cash deposit rates for estimated domestic subsidy pass-through, where appropriate. However, in this case there is no basis to grant a domestic subsidy pass-through adjustment. See Preliminary Decision Memorandum.

    Disclosure and Public Comment

    We intend to disclose the calculations performed to interested parties in this proceeding within five days of the date of announcement of this preliminary determination in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs, rebuttal briefs, and hearing requests.16 For a schedule of the deadlines for filing case briefs, rebuttal briefs, and hearing requests, see the Preliminary Decision Memorandum at Section IX.

    16See 19 CFR 351.309(c)-(d), 19 CFR 351.310(c).

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On July 11, 2016, pursuant to 19 CFR 351.210(b) and (e), Taian Modern requested that, contingent upon an affirmative preliminary determination of sales at LTFV, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.17

    17See Letter to the Secretary of Commerce from Taian Modern Plastic Co., Ltd.,”Certain Biaxial Integral Geogrid Products from the People's Republic of China: Request to Extend Final Determination” (July 11, 2016).

    In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 120 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.18

    18See also 19 CFR 351.210(e).

    International Trade Commission (ITC) Notification

    In accordance with section 733(f) of the Act, we will notify the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: August 16, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigation

    The products covered by the scope are certain biaxial integral geogrid products. Biaxial integral geogrid products are a polymer grid or mesh material (whether or not finished, slit, cut-to-length, attached to woven or non-woven fabric or sheet material, or packaged) in which four-sided openings in the form of squares, rectangles, rhomboids, diamonds, or other four-sided figures predominate. The products covered have integral strands that have been stretched to induce molecular orientation into the material (as evidenced by the strands being thinner in width toward the middle between the junctions than at the junctions themselves) constituting the sides of the openings and integral junctions where the strands intersect. The scope includes products in which four-sided figures predominate whether or not they also contain additional strands intersecting the four-sided figures and whether or not the inside corners of the four-sided figures are rounded off or not sharp angles. As used herein, the term “integral” refers to strands and junctions that are homogenous with each other. The products covered have a tensile strength of greater than 5 kilonewtons per meter (“kN/m”) according to American Society for Testing and Materials (“ASTM”) Standard Test Method D6637/D6637M in any direction and average overall flexural stiffness of more than 100,000 milligram-centimeter according to the ASTM D7748/D7748M Standard Test Method for Flexural Rigidity of Geogrids, Geotextiles and Related Products, or other equivalent test method standards.

    Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise further processed in a third country, including by trimming, slitting, coating, cutting, punching holes, stretching, attaching to woven or non-woven fabric or sheet material, or any other finishing, packaging, or other further processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the biaxial integral geogrid.

    The products subject to the scope are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under the following subheading: 3926.90.9995. Subject merchandise may also enter under subheadings 3920.20.0050 and 3925.90.0000. The HTSUS subheadings set forth above are provided for convenience and U.S. Customs purposes only. The written description of the scope is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Selection of Respondents VII. Preliminary Determination of Critical Circumstances, in Part VIII. Scope of the Investigation IX. Discussion of the Methodology a. Non-Market Economy Country b. Surrogate Country and Surrogate Values Comments c. Separate Rates d. Combination Rates e. Affiliation f. The PRC-wide Entity g. Application of Facts Available and Adverse Inferences h. Date of Sale i. Comparisons to Fair Value X. Currency Conversion XI. Export Subsidy Adjustment XII. Adjustment Under Section 777a(f) of the Act XIII. Disclosure and Public Comment XIV. Verification XV. Conclusion
    [FR Doc. 2016-20024 Filed 8-19-16; 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: Rescission of 2014-2015 Antidumping Duty New Shipper Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (“Department”) finds that the sale made by Inner Mongolia Jianlong Biochemical Co., Ltd. (“IMJ”) is a non-bona fide sale. Therefore, we are rescinding this new shipper review (“NSR”).

    DATES:

    Effective August 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Patrick O'Connor, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0989.

    SUPPLEMENTARY INFORMATION: Background

    The Department published its Preliminary Results in this NSR on March 22, 2016.1 Subsequently, IMJ filed a case brief on May 15, 2016 and CP Kelco U.S. (Petitioner) filed a rebuttal brief on May 16, 2016.

    1See Xanthan Gum From the People's Republic of China: Preliminary Rescission of 2014-2015 Antidumping Duty New Shipper Review, 81 FR 15240 (March 22, 2016) (“Preliminary Results”); see also Memorandum to Abdelali Elouaradia, Director, Office IV, AD/CVD Operations, from Cara Lofaro and Brandon Farlander, International Trade Analysts, entitled “2014-2015 Antidumping Duty New Shipper Review of Xanthan Gum From the People's Republic of China: Preliminary Bona Fide Sales Analysis for Inner Mongolia Jianlong Biochemical Co., Ltd.,” dated March 15, 2016.

    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 (“HTS”) 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.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 Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, entitled “Issues and Decision Memorandum for the Final Results of the Antidumping Duty New Shipper Review of Xanthan Gum from the People's Republic of China” issued concurrently with and hereby adopted by this notice (“Issues and Decision Memorandum”).

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties are addressed in the Issues and Decision Memorandum.3 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content. A list of the issues which parties raised is attached to this notice as an Appendix.

    3Id.

    Rescission of New Shipper Review

    For the reasons explained in the Issues and Decision Memorandum, the Department continues to find that IMJ's one sale is a non-bona fide sale. Because the non-bona fide sale was the only reported sale of subject merchandise during the POR, and thus there are no reviewable transactions, the Department is rescinding this NSR.

    Assessment

    As the Department is rescinding this NSR, we have not calculated a company-specific dumping margin for IMJ. IMJ remains part of the PRC-wide entity and, accordingly, entries of its subject merchandise will be assessed at the PRC-wide rate.

    Cash Deposit Requirements

    Effective upon publication of this notice of final rescission of the NSR of IMJ, the Department will instruct U.S. Customs and Border Protection to discontinue the option of posting a bond or security in lieu of a cash deposit for entries of subject merchandise from IMJ. IMJ continues to be part of the PRC-wide entity, and subject to the PRC-wide entity rate of 154.07 percent.4 These cash deposit requirements shall remain in effect until further notice.

    4See Xanthan Gum From the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 78 FR 43143 (July 19, 2013).

    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, which continues to govern business proprietary information in these segments of the proceeding. Timely written notification of the return or 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)(2)(B) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.214.

    Dated: August 12, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix—Issues and Decision Memorandum Summary Background Scope of the Order Discussion of the Issues: Comment 1: Whether IMJ Met the Regulatory Requirements for Requesting a New Shipper Review Comment 2: Whether or not IMJ's Sale was a Bona Fide Sale Comment 3: IMJ's March 24, 2016 Submission Recommendation
    [FR Doc. 2016-20014 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-016] Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Notice of Final Results of Antidumping Duty Changed Circumstances Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On July 8, 2016, the Department of Commerce (the Department) published its notice of initiation and preliminary results of a changed circumstances review of the antidumping duty (AD) order on certain passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (PRC). In that notice, we preliminarily determined that Sailun Jinyu Group (HONG KONG) Co., Limited (Sailun Jinyu HK) is the successor-in-interest to Jinyu International Holding Co., Limited (Jinyu HK) for purposes of determining antidumping duty cash deposits and liabilities. No interested party submitted comments regarding the initiation and preliminary results. For these final results, the Department continues to find that Sailun Jinyu HK is the successor-in-interest to Jinyu HK.

    DATES:

    Effective August 22, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Toni Page, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1398.

    SUPPLEMENTARY INFORMATION:

    Background

    On August 10, 2015, the Department published in the Federal Register an AD order on passenger tires from the PRC.1 On December 21, 2015, Jinyu HK, an exporter of passenger tires covered by this order, changed its name from Jinyu HK to Sailun Jinyu HK. On February 23, 2016, Jinyu HK requested that the Department conduct a changed circumstances review under section 751(b) of the Tariff Act of 1930 (the Act), as amended, 19 CFR 351.216, and 19 CFR 351.221(c)(3).2 In this request, Jinyu HK asked the Department to determine that Sailun Jinyu HK it is the successor-in-interest to Jinyu HK and, accordingly, to assign it Jinyu HK's cash deposit rate.3

    1See Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Amended Final Affirmative Antidumping Duty Determination and Antidumping Duty Order; and Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 80 FR 47902 (August 10, 2015) (AD Order).

    2See letter from Jinyu HK entitled, “Jinyu International Holding Co., Limited's Request for a Changed Circumstances Review in Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, Case No. A-570-016,” at 1 (February 23, 2016) (CCR Request).

    3Id.

    On July 8, 2016, the Department published its notice of initiation and preliminary results of this changed circumstances review, determining that Sailun Jinyu HK is the successor-in-interest to Jinyu HK.4 In the Initiation and Preliminary Results, we provided all interested parties with an opportunity to comment and to request a public hearing regarding our preliminary finding that Sailun Jinyu HK is the successor-in-interest to Jinyu HK. We received no comments regarding our preliminary finding and no requests for a public hearing from interested parties within the time period set forth in the Initiation and Preliminary Results.

    4SeeNotice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review: Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China,” 88 FR 44588 (July 8, 2016) (Initiation and Preliminary Results).

    Scope of the Order

    The products covered by the scope of this order are passenger vehicle and light truck tires. Passenger vehicle and light truck tires are new pneumatic tires, of rubber, with a passenger vehicle or light truck size designation. Tires covered by this order may be tube-type, tubeless, radial, or non-radial, and they may be intended for sale to original equipment manufacturers or the replacement market.

    Subject tires have, at the time of importation, the symbol “DOT” on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Subject tires may also have the following prefixes or suffix in their tire size designation, which also appears on the sidewall of the tire:

    Prefix designations:

    P—Identifies a tire intended primarily for service on passenger cars.

    LT—Identifies a tire intended primarily for service on light trucks.

    Suffix letter designations:

    LT—Identifies light truck tires for service on trucks, buses, trailers, and multipurpose passenger vehicles used in nominal highway service.

    All tires with a “P” or “LT” prefix, and all tires with an “LT” suffix in their sidewall markings are covered by this investigation regardless of their intended use.

    In addition, all tires that lack a “P” or “LT” prefix or suffix in their sidewall markings, as well as all tires that include any other prefix or suffix in their sidewall markings, are included in the scope, regardless of their intended use, as long as the tire is of a size that is among the numerical size designations listed in the passenger car section or light truck section of the Tire and Rim Association Year Book, as updated annually, unless the tire falls within one of the specific exclusions set out below.

    Passenger vehicle and light truck tires, whether or not attached to wheels or rims, are included in the scope. However, if a subject tire is imported attached to a wheel or rim, only the tire is covered by the scope.

    Specifically excluded from the scope are the following types of tires:

    (1) Racing car tires; such tires do not bear the symbol “DOT” on the sidewall and may be marked with “ZR” in size designation;

    (2) new pneumatic tires, of rubber, of a size that is not listed in the passenger car section or light truck section of the Tire and Rim Association Year Book;

    (3) pneumatic tires, of rubber, that are not new, including recycled and retreaded tires;

    (4) non-pneumatic tires, such as solid rubber tires;

    (5) tires designed and marketed exclusively as temporary use spare tires for passenger vehicles which, in addition, exhibit each of the following physical characteristics:

    (a) the size designation and load index combination molded on the tire's sidewall are listed in Table PCT-1B (“T” Type Spare Tires for Temporary Use on Passenger Vehicles) of the Tire and Rim Association Year Book,

    (b) the designation “T” is molded into the tire's sidewall as part of the size designation, and,

    (c) the tire's speed rating is molded on the sidewall, indicating the rated speed in MPH or a letter rating as listed by Tire and Rim Association Year Book, and the rated speed is 81 MPH or a “M” rating;

    (6) tires designed and marketed exclusively for specialty tire (ST) use which, in addition, exhibit each of the following conditions:

    (a) the size designation molded on the tire's sidewall is listed in the ST sections of the Tire and Rim Association Year Book,

    (b) the designation “ST” is molded into the tire's sidewall as part of the size designation,

    (c) the tire incorporates a warning, prominently molded on the sidewall, that the tire is “For Trailer Service Only” or “For Trailer Use Only”,

    (d) the load index molded on the tire's sidewall meets or exceeds those load indexes listed in the Tire and Rim Association Year Book for the relevant ST tire size, and

    (e) either

    (i) the tire's speed rating is molded on the sidewall, indicating the rated speed in MPH or a letter rating as listed by Tire and Rim Association Year Book, and the rated speed does not exceed 81 MPH or an “M” rating; or

    (ii) the tire's speed rating molded on the sidewall is 87 MPH or an “N” rating, and in either case the tire's maximum pressure and maximum load limit are molded on the sidewall and either

    (1) both exceed the maximum pressure and maximum load limit for any tire of the same size designation in either the passenger car or light truck section of the Tire and Rim Association Year Book; or

    (2) if the maximum cold inflation pressure molded on the tire is less than any cold inflation pressure listed for that size designation in either the passenger car or light truck section of the Tire and Rim Association Year Book, the maximum load limit molded on the tire is higher than the maximum load limit listed at that cold inflation pressure for that size designation in either the passenger car or light truck section of the Tire and Rim Association Year Book;

    (7) tires designed and marketed exclusively for off-road use and which, in addition, exhibit each of the following physical characteristics:

    (a) the size designation and load index combination molded on the tire's sidewall are listed in the off-the-road, agricultural, industrial or ATV section of the Tire and Rim Association Year Book,

    (b) in addition to any size designation markings, the tire incorporates a warning, prominently molded on the sidewall, that the tire is “Not For Highway Service” or “Not for Highway Use”,

    (c) the tire's speed rating is molded on the sidewall, indicating the rated speed in MPH or a letter rating as listed by the Tire and Rim Association Year Book, and the rated speed does not exceed 55 MPH or a “G” rating, and

    (d) the tire features a recognizable off-road tread design.

    The products covered by the order are currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.10.10.10, 4011.10.10.20, 4011.10.10.30, 4011.10.10.40, 4011.10.10.50, 4011.10.10.60, 4011.10.10.70, 4011.10.50.00, 4011.20.10.05, and 4011.20.50.10. Tires meeting the scope description may also enter under the following HTSUS subheadings: 4011.99.45.10, 4011.99.45.50, 4011.99.85.10, 4011.99.85.50, 8708.70.45.45, 8708.70.45.60, 8708.70.60.30, 8708.70.60.45, and 8708.70.60.60. While HTSUS subheadings are provided for convenience and for customs purposes, the written description of the subject merchandise is dispositive.

    Final Results of Changed Circumstances Review

    For the reasons stated in the Initiation and Preliminary Results, and because we received no comments from interested parties to the contrary, the Department continues to find that Sailun Jinyu HK is the successor-in-interest to Jinyu HK. As a result of this determination, we find that Sailun Jinyu HK should receive the AD cash deposit rate previously assigned to Jinyu HK in the AD Order for passenger tires from the PRC.5 Consequently, the Department will instruct U.S. Customs and Border Protection to suspend liquidation of all shipments of subject merchandise produced or exported by Sailun Jinyu HK and entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the Federal Register at 0.00 percent, which is the current AD cash deposit rate for Jinyu HK.6 This cash deposit requirement shall remain in effect until further notice.

    5See AD Order.

    6 Jinyu HK (as part of the Sailun Group Co., Ltd.) received a cash deposit rate of 0.00 percent in the investigation of passenger tires from the PRC. See AD Order, at 47904. Because we determined that Sailun Jinyu HK is the successor-in-interest to Jinyu HK, we will assign Sailun Jinyu HK a cash deposit rate based on the amended final determination of that investigation.

    We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act and 19 CFR 351.216 and 351.221(c)(3).

    Dated: August 15, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-20023 Filed 8-19-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE435 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys off the Coast of Massachusetts AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with regulations implementing the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Bay State Wind LLC (Bay State Wind) to take marine mammals, by harassment, incidental to high-resolution geophysical (HRG) and geotechnical survey investigations associated with marine site characterization activities off the coast of Massachusetts in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0500) (the Lease Area).

    DATES:

    Effective August 13, 2016, through August 12, 2017.

    FOR FURTHER INFORMATION CONTACT:

    John Fiorentino, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    An electronic copy of Bay State Wind's IHA application (the application) and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On December 4, 2015, NMFS received an application from Bay State Wind for the taking of marine mammals incidental to spring 2016 geophysical survey investigations off the coast of Massachusetts in the OCS-A 0500 Lease Area, designated and offered by the U.S. Bureau of Ocean Energy Management (BOEM), to support the development of an offshore wind project. NMFS determined that the application was adequate and complete on January 27, 2016. On January 20, 2016, Bay State Wind submitted a separate request for the taking of marine mammals incidental to proposed geotechnical survey activities within the Lease Area scheduled for fall 2016. On February 26, 2016, Bay State Wind submitted a revision to the take request for the geotechnical activities and an addendum requesting that the two IHA requests be processed as a single application and IHA. NMFS determined that the combined application was adequate and complete on February 26, 2016. NMFS published a notice making preliminary determinations and proposing to issue an IHA on April 5, 2016 (81 FR 19557). The notice initiated a 30-day comment period.

    The proposed geophysical survey activities would occur for four weeks beginning in August 2016, and geotechnical survey activities would take place in September 2016 and last for approximately 6 days. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: shallow and medium-penetration sub-bottom profiler (chirper and sparker) and equipment positioning system (also referred to as acoustic positioning system, or pinger) use during the HRG survey, and dynamically positioned (DP) vessel thruster use in support of geotechnical survey activities. Take, by Level B Harassment only, of individuals of nine species of marine mammals is anticipated to result from the specified activities.

    Description of the Specified Activity Overview

    Bay State Wind's proposed activities discussed here are based on its February 26, 2016, final IHA application. Bay State Wind proposes to conduct a geophysical and geotechnical survey in the Lease Area to support the characterization of the existing seabed and subsurface geological conditions in the Lease Area. This information is necessary to support the siting and design of up to two floating light and detection ranging buoys (FLIDARs) and up to two metocean monitoring buoys, as well as to obtain a baseline assessment of seabed/sub-surface soil conditions in the Bay State Wind Massachusetts Lease Area to support the siting of the proposed wind farm.

    Dates and Duration

    HRG surveys are anticipated to commence in August 2016 and will last for approximately 30 days. Geotechnical surveys requiring the use of the DP drill ship will take place in September 2016, at the earliest, and will last for approximately 6 days.

    Specified Geographic Region

    Bay State Wind's survey activities will occur in the approximately 187,532-acre Lease Area designated and offered by BOEM, located approximately 14 miles (mi) south of Martha's Vineyard, Massachusetts, at its closest point (see Figure 1-1 of the application). The Lease Area falls within the Massachusetts Wind Energy Area (MA WEA; Figure 1-1 of the application). An evaluation of site assessment activities within the MA WEA was fully assessed in the BOEM Environmental Assessment (EA) and associated Finding of No Significant Impact (BOEM 2014). A Biological Opinion on site assessment activities within the MA WEA was issued by NMFS' Greater Atlantic Regional Fisheries Office (formerly Northeast Regional Office) to BOEM in April 2013.

    Detailed Description of Activities

    The Federal Register notice for the proposed IHA (81 FR 19557; April 5, 2016; pages 19558-19560) contains a full detailed description of the geotechnical and geophysical survey activities, including the sources proposed to be used and vessel details. That information has not changed and is therefore not repeated here.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Bay State Wind was published in the Federal Register on April 5, 2016 (81 FR 19557). That notice described, in detail, Bay State Wind's proposed activities, the marine mammal species that may be affected by the proposed activities, and the anticipated effects on marine mammals and their habitat. During the 30-day public comment period, NMFS only received comments from the Marine Mammal Commission (Commission). Specific comments and responses are provided below. Comments are also posted at http://www.nmfs.noaa.gov/pr/permits/incidental/.

    Comment 1: The Commission recommended a 24-hour “reset” for enumerating takes by applying standard rounding rules before summing the numbers of estimated takes across days. The Commission has made similar rounding recommendations for other recent proposed incidental harassment authorizations.

    Response: NMFS generally does not round take calculations to derive a daily take estimate prior to summing values across total project days. Rather, we apply standard rounding rules at the end of our calculations, which we feel results in a more accurate estimation of takes over the duration of the project and authorization. NMFS appreciates the Commission's recommendation and concurs that a consistent approach to estimating potential takes, where appropriate, is important. We will consider the Commission's recommended methodology on an action-specific basis.

    Comment 2: The Commission recommended that NMFS revise its take estimates for harbor and gray seals by removing the 80 percent reduction factor that was used to calculate takes in Bay State Wind's application and in the proposed IHA (81 FR 19557; “Estimated Take by Incidental Harassment,” pages 19573-19575).

    Response: NMFS agrees with the Commission's recommendation to no longer use a reduction factor to estimate harbor and gray seal densities in the project area. In the proposed IHA, NMFS had applied an 80 percent reduction factor for harbor and gray seal densities based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder 2000; Ronald and Gots 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal) (refer to Waring et al., 2015 for information on population size and current population trend), and this reduction factor is no longer appropriate for calculating takes for harbor and gray seals. NMFS has revised the take estimates accordingly for harbor and gray seals in this final IHA, using the densities reported in the Northeast Navy Operations Area (OPAREA) Density Estimates (see Table 3). Despite the resulting increase in take numbers for harbor and gray seals, estimated takes continue to represent extremely small numbers (less than 1 percent) relative to the affected species or stock sizes. NMFS will continue to advise future applicants to use up to date density estimates that reflect best available information for harbor and gray seals (and other marine mammals) as these data become available.

    Comment 3: The Commission recommended that until behavior thresholds are updated, that NMFS require applicants to use the 120-dB rather than 160-dB Level B harassment threshold for sub-bottom profilers. The Commission has made similar comments on other NMFS authorizations (e.g., ExxonMobil Alaska liquefied natural gas geophysical surveys; NMFS Fisheries Science Center fisheries research) proposed for activities using acoustic non-impulsive sources, including sub-bottom profilers, echosounders, and other sonars (e.g., side scan and fish-finding).

    Response: The 120-dB threshold is typically associated with continuous sources. Continuous sounds are those whose sound pressure level remains above that of the ambient sound, with negligibly small fluctuations in level (NIOSH 1998; ANSI 2005). Intermittent sounds are defined as sounds with interrupted levels of low or no sound (NIOSH 1998). Sub-bottom profiler signals are intermittent sounds. Intermittent sounds can further be defined as either impulsive or non-impulsive. Impulsive sounds have been defined as sounds which are typically transient, brief (<1 second), broadband, and consist of a high peak pressure with rapid rise time and rapid decay (ANSI 1986; NIOSH 1998). Non-impulsive sounds typically have more gradual rise times and longer decays (ANSI 1995; NIOSH 1998). Sub-bottom profiler signals have durations that are typically very brief (<1 second), with temporal characteristics that more closely resemble those of impulsive sounds than non-impulsive sounds. With regard to behavioral thresholds, we therefore consider the temporal and spectral characteristics of sub-bottom profiler signals to more closely resemble those of an impulse sound rather than a continuous sound. The 160-dB threshold is typically associated with impulsive sources.

    The Commission has suggested that, for certain sources considered here, the interval between pulses is so small it should be considered continuous. However, a sub-bottom profiler chirp's pulse train is emitted in a similar fashion as odontocete echolocation click trains. Research indicates that marine mammals, in general, have extremely fine auditory temporal resolution and can detect each signal separately (e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov 1995; Mooney et al., 2009), especially for species with echolocation capabilities. Therefore, it is highly unlikely that marine mammals would perceive sub-bottom profiler signals as being continuous.

    In conclusion, sub-bottom profiler signals are intermittent rather than continuous signals, and the fine temporal resolution of the marine mammal auditory system allows them to perceive these sounds as such. Further, the physical characteristics of these signals indicate a greater similarity to the way that intermittent, impulsive sounds are received. Therefore, the 160-dB threshold (typically associated with impulsive sources) is more appropriate than the 120-dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources.

    NMFS agrees with the Commission's recommendation to update existing acoustic criteria and thresholds as necessary to specify threshold levels that would be more appropriate for a wider range of sound sources, and is currently in the process of producing such revisions. In particular, NMFS recognizes the importance of context (e.g., behavioral state of the animals, distance) in behavioral responses. The current behavioral categorization (i.e., impulse vs. continuous) does not account for context and is not appropriate for all sound sources. Thus, updated NMFS Acoustic Guidance (http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm), once finalized, will more appropriately categorize behavioral harassment criteria by activity type. NMFS recognizes, as new science becomes available, that our current categorizations (i.e., impulse vs. continuous) may not fully encompass the complexity associated with behavioral responses (i.e., context, etc.) and are working toward addressing these issues in future acoustic guidance. However, in the meanwhile, while our current behavioral acoustic thresholds may not fully account for some of the differences observed across taxa and contexts, they still serve as somewhat conservative generalized indicators of received levels at which we anticipate behavioral harassment, and are not undermined by newer information.

    Comment 4: The Commission commented that the number of days used to estimate takes for the planned HRG and geotechnical surveys was determined in an inconsistent manner. The Commission recommended that if NMFS plans to include weather contingency days in its calculation of takes for HRG surveys it should also include weather contingency days for the geotechnical surveys as well.

    Response 4: The notice of the proposed IHA was not clear regarding NMFS' consideration of weather contingency days in the calculating of takes. To clarify, additional days for weather downtime were not factored into the calculation of takes for either the HRG or geotechnical surveys. Takes for the HRG survey were calculated based on the 30 days estimated for completion of that survey effort, and takes for the geotechnical survey were based on a total of 6 days of survey work. There was no difference in NMFS' approach to calculating takes for these two survey activities.

    Comment 5: The Commission recommended that NMFS work with the BOEM Office of Renewable Energy to develop clear and consistent guidance for applicants regarding appropriate mitigation measures and the circumstances under which adoption of such measures would avoid the potential for taking marine mammals and the need for an incidental harassment authorization. The Commission further recommended that NMFS use a consistent approach for reducing (or not reducing) the numbers of estimated takes based on the requirement to implement mitigation measures to preclude taking in the respective Level B harassment zones.

    Response 5: NMFS agrees with the Commission that close coordination with BOEM is needed to maintain appropriate and consistent guidance for potential applicants, including with regards to mitigation and monitoring strategies that might potentially reduce the potential for taking marine mammals or preclude the need for a MMPA authorization. NMFS has been working closely with BOEM to develop a stage-based approach to mitigation, monitoring, and reporting for each stage of offshore wind farm development. This is especially important in light of the growing potential for OCS wind farm development in the Atlantic, where there is uncertainty regarding impacts and in which an applicant may need to engage in multi-regulatory and compliance efforts and processes that involve other agencies (e.g., BOEM, Federal Energy Regulatory Commission, U.S. Army Corps of Engineers) who may include standard mitigation measures for protected species as part of their compliance requirements. Often these compliance efforts occur well before an applicant considers an MMPA authorization (as an example, the mitigation requirements and other standard operating conditions for the geophysical and geotechnical activities covered by the BOEM Lease OCS-A 0500 were developed over a year ago).

    NMFS appreciates the Commission's recommendation and concurs that a consistent approach to estimating potential takes, where appropriate, is important. With few exceptions (e.g., pile-driving activities in Cook Inlet—as referenced in the Commission's comment letter), NMFS generally does not factor in the implementation of mitigation measures to reduce Level B harassment takes in its MMPA authorizations. Rather, we base our analysis and negligible impact determinations on the actual number of takes that are authorized and without accounting for any potential post-mitigation reductions in take numbers. In the case of this IHA, and despite the fact that the total number of takes authorized is unlikely to actually occur due to the very restrictive mitigation measures (e.g., shutdown/powerdown if an animal enters the Level B harassment isopleths), it was NMFS' opinion that some Level B takes would still occur due to the nature and duration of the survey activities within these harassment zones (e.g., night time operations; large [up to 3.4 km] Level B harassment zones in some cases) and the potential to take listed species (as corroborated by the 2013 Biological Opinion), thus, warranting the issuance of an MMPA authorization.

    Description of Marine Mammals in the Area of the Specified Activity

    The “Description of Marine Mammals in the Area of the Specified Activities” section has not changed from what was in the proposed IHA (81 FR 19557; April 5, 2016; pages 19560-19561). The following species are both common in the waters of the Northwest Atlantic Outer Continental Shelf (OCS) region south of Massachusetts and have the highest likelihood of occurring, at least seasonally, in the Lease Area: North Atlantic right whale (Eubalaena glacialis), humpback whale (Megaptera novaeangliae), fin whale (Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), Atlantic white-sided dolphin (Lagenorhynchus acutus), short-beaked common dolphin (Delphinus delphis), harbor seal (Phoca vitulina), and gray seal (Halichorus grypus). Three of these species are listed under the Endangered Species Act (ESA): North Atlantic right whale, humpback whale, and fin whale.

    Further information on the biology, ecology, abundance, and distribution of those species likely to occur in the Lease Area can be found in Bay State Wind's application and in the NMFS Marine Mammal Stock Assessment Reports (see Waring et al., 2015), which are available online at: http://www.nmfs.noaa.gov/pr/species/mammals.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    We provided a detailed discussion of the potential effects of the specified activity on marine mammals and their habitat in the notice of the proposed IHA (81 FR 19557; April 5, 2016; pages 19561-19567). That information has not changed and is not repeated here.

    Mitigation

    In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).

    Mitigation Measures

    With NMFS' input during the application process, and as per the BOEM Lease, Bay State Wind shall implement the following mitigation measures during site characterization surveys utilizing HRG survey equipment and use of the DP thruster. The mitigation measures outlined in this section are based on protocols and procedures that have been successfully implemented for similar offshore projects and previously approved by NMFS (ESS 2013; Dominion 2013 and 2014).

    Marine Mammal Exclusion Zones

    Protected species observers (PSOs) shall monitor the following exclusion/monitoring zones for the presence of marine mammals:

    • A 400-m exclusion zone during HRG surveys when the sub-bottom profiler is in operation.

    • A 200-m exclusion zone during HRG surveys when all other equipment (i.e., equipment positioning systems) is in operation.

    • A 3,500-m monitoring zone during the use of DP thrusters during geotechnical survey activities.

    The radial distances from the sound sources for these exclusion/monitoring zones were derived from acoustic modeling (see Appendix A of the application) and cover the area for both the Level A and Level B harassment zones (i.e., the 190/180 dB and 160 dB isopleths, respectively) when HRG survey equipment is in use, and the Level B harassment zone (the 120 dB isopleth) when DP thrusters are in use; DP thrusters will not produce sound levels at 180 dB re 1 μPa (rms). Acoustic modeling of the HRG survey equipment and DP thrusters was completed based on a version of the U.S. Naval Research Laboratory's Range-dependent Acoustic Model (RAM) and BELLHOP Gaussian beam ray-trace propagation model (Porter and Liu, 1994). The representative area ensonified to the Level B harassment threshold for each of the pieces of HRG survey equipment and for the DP thruster use represents the zone within which take of a marine mammal could occur. The distances to the Level A and Level B harassment thresholds were used to support the estimate of take as well as the development of the monitoring and/or mitigation measures. The complete acoustic modeling assessment can be found in Appendix A of the application, and is also summarized in the notice of the proposed IHA (81 FR 19557; April 5, 2016; pages 19567-19568). Radial distance to NMFS' Level A and Level B harassment thresholds are summarized in Tables 1 and 2.

    Table 1—Modeled Distances to MMPA Thresholds for Marine Mammals During HRG Survey HRG equipment Marine mammal
  • Level A harassment
  • 180 dBRMS re 1 μPa (m)*
  • Marine mammal
  • Level B harassment
  • 160 dBRMS re 1 μPa (m)
  • ixBlue GAPS (pinger) <10 25 Sonardyne Scout USBL (pinger) 0 25 GeoPulse Sub-bottom Profiler (chirper) 30 75 Geo-Source 800 (sparker) 80 250 Geo-Source 200 (sparker) 90 380 * Distances to NMFS' 190 dB Level A harassment threshold for pinnipeds are smaller.
    Table 2—Modeled Distances to MMPA Thresholds for Marine Mammals During Geotechnical Survey Using DP Thrusters Survey equipment Marine mammal
  • Level A harassment
  • 180 dBRMS re 1 μPa (m)
  • Marine mammal
  • Level B harassment
  • 120 dBRMS re 1 μPa (m)
  • DP Thrusters—at 38 m depth N/A 2,875 DP Thrusters—at 44 m depth N/A 3,225 DP Thrusters—at 54 m depth N/A 3,400

    Visual monitoring of the established exclusion zone(s) for the HRG and geotechnical surveys will be performed by qualified and NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. An observer team comprising a minimum of four NMFS-approved PSOs and two certified Passive Acoustic Monitoring (PAM) operators (PAM operators will not function as PSOs), operating in shifts, will be stationed aboard either the survey vessel or a dedicated PSO-vessel. PSOs and PAM operators will work in shifts such that no one monitor will work more than four consecutive hours without a two-hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs will rotate in shifts of one on and three off, while during nighttime operations PSOs will work in pairs. The PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. Each PSO will monitor 360 degrees of the field of vision.

    PSOs will be responsible for visually monitoring and identifying marine mammals approaching or within the established exclusion zone(s) during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. PAM operators will communicate detections/vocalizations to the Lead PSO on duty, who will then be responsible for implementing the necessary mitigation procedures. A mitigation and monitoring communications flow diagram has been included as Appendix B in the IHA application.

    PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During night operations or when visual observation is otherwise impaired (e.g., during bad weather, rough sea conditions, poor lighting conditions), PAM (see Passive Acoustic Monitoring requirements below) and night-vision devices with infrared light-emitting diodes spotlights, in combination with infrared video monitoring, will be used (for additional details regarding proposed PAM, night-vision, and infrared technologies, refer to Section 2.5 Alternative Monitoring Plan in the Bay State Wind Offshore Wind Farm Site Assessment Plan [SAP] Survey Plan [BOEM 2016], which was submitted pursuant to Addendum C, Lease Stipulation 2.1.1.1 of the BOEM Lease). Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting.

    The PSOs will begin observation of the exclusion zone(s) at least 60 minutes prior to ramp-up of HRG survey equipment. Use of noise-producing equipment will not begin until the exclusion zone is clear of all marine mammals for at least 60 minutes, as per the requirements of the BOEM Lease.

    If a marine mammal is detected approaching or entering the 200-m or 400-m exclusion zones during the HRG survey, or the 3,500-m monitoring zone during DP thrusters use, the vessel operator would adhere to the shutdown (during HRG survey) or powerdown (during DP thruster use) procedures described below to minimize noise impacts on the animals.

    At all times, the vessel operator will maintain a separation distance of 500 m from any sighted North Atlantic right whale as stipulated in the Vessel Strike Avoidance procedures described below. These stated requirements will be included in the site-specific training to be provided to the survey team.

    Vessel Strike Avoidance

    Bay State Wind will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds and slow down or stop their vessels to avoid striking these species. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammal and sea turtle sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures will include the following, except under extraordinary circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

    • All vessel operators will comply with 10 knot (<18.5 km per hour [km/h]) speed restrictions in any Dynamic Management Area (DMA). In addition, all vessels operating from November 1 through July 31 will operate at speeds of 10 knots (<18.5 km/h) or less.

    • All survey vessels will maintain a separation distance of 500 m or greater from any sighted North Atlantic right whale.

    • If underway, vessels must steer a course away from any sited North Atlantic right whale at 10 knots (<18.5 km/h) or less until the 500 m minimum separation distance has been established. If a North Atlantic right whale is sited in a vessel's path, or within 100 m to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m.

    • All vessels will maintain a separation distance of 100 m or greater from any sighted non-delphinoid (i.e., mysticetes and sperm whales) cetaceans. If sighted within 100 m, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m.

    • All vessels will maintain a separation distance of 50 m or greater from any sighted delphinoid cetacean. Any vessel underway will remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway will reduce vessel speed to 10 knots or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or abeam (i.e., moving away and at a right angle to the centerline of the vessel) of the underway vessel.

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.

    The training program will be provided to NMFS for review and approval prior to the start of surveys. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey event.

    Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult the NMFS North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. The proposed survey activities will, however, occur outside of the seasonal management area (SMA) located off the coast of Massachusetts and Rhode Island. The proposed survey activities will also occur in August and September, which is outside of the seasonal mandatory speed restriction period for this SMA (November 1 through April 30).

    Throughout all survey operations, Bay State Wind will monitor the NMFS North Atlantic right whale reporting systems for the establishment of a DMA. If NMFS should establish a DMA in the Lease Area under survey, within 24 hours of the establishment of the DMA Bay State Wind will work with NMFS to shut down and/or alter the survey activities to avoid the DMA.

    Passive Acoustic Monitoring

    As per the BOEM Lease, alternative monitoring technologies (e.g., active or passive acoustic monitoring) are required if a Lessee intends to conduct geophysical or geotechnical surveys at night or when visual observation is otherwise impaired (e.g., during bad weather, rough sea conditions, poor lighting conditions). To support 24-hour survey operations, Bay State Wind will use certified PAM operators with experience reviewing and identifying recorded marine mammal vocalizations, as part of the project monitoring during nighttime operations to provide for optimal acquisition of species detections at night, or as needed during periods when visual observations may be impaired. In addition, PAM systems shall be employed during daylight hours to support system calibration and PSO and PAM team coordination, as well as in support of efforts to evaluate the effectiveness of the various mitigation techniques (i.e., visual observations during day and night, compared to the PAM detections/operations).

    Given the range of species that could occur in the Lease Area, and that these species vary with regard to their vocalization frequencies (high vs. low), the PAM system will consist of an array of hydrophones with both broadband (sampling frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 10 Hz to 30 kHz). Monitoring of the PAM system will be conducted from a customized processing station aboard the survey vessel. The on-board processing station provides the interface between the PAM system and the operator. The PAM operator(s) will monitor the hydrophone signals in real time both aurally (using headphones) and visually (via the monitor screen displays). Bay State Wind proposes the use of PAMGuard software for `target motion analysis' to support localization in relation to the identified exclusion zone. PAMGuard is an open source and versatile software/hardware interface to enable flexibility in the configuration of in-sea equipment (number of hydrophones, sensitivities, spacing, and geometry). PAM operators will immediately communicate detections/vocalizations to the Lead PSO on duty who will ensure the implementation of the appropriate mitigation measure (e.g., shutdown) even if visual observations by PSOs have not been made.

    Additional details regarding the proposed PAM system can be found in Section 2.5 Alternative Monitoring Plan in the Bay State Wind Offshore Wind Farm SAP Survey Plan (BOEM, 2016).

    Ramp-Up

    As per the BOEM Lease, a ramp-up procedure will be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of HRG survey activities. A ramp-up procedure will be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the Lease Area by allowing them to vacate the area prior to the commencement of survey equipment use. The ramp-up procedure will not be initiated during daytime, night time, or periods of inclement weather if the exclusion zone cannot be adequately monitored by the PSOs using the appropriate visual technology (e.g., reticulated binoculars, night vision equipment) and/or PAM for a 60-minute period. A ramp-up would begin with the power of the smallest acoustic HRG equipment at its lowest practical power output appropriate for the survey. The power would then be gradually turned up and other acoustic sources added such that the source level would increase in steps not exceeding 6 dB per 5-minute period. If marine mammals are detected within the HRG survey exclusion zone prior to or during the ramp-up, activities will be delayed until the animal(s) has moved outside the monitoring zone and no marine mammals are detected for a period of 60 minutes.

    Shutdown and Powerdown

    HRG Survey—The exclusion zone(s) around the noise-producing activities HRG survey equipment will be monitored, as previously described, by PSOs and at night by PAM operators for the presence of marine mammals before, during, and after any noise-producing activity. The vessel operator must comply immediately with any call for shutdown by the Lead PSO. Any disagreement should be discussed only after shutdown.

    As per the BOEM Lease, if a non-delphinoid (i.e., mysticetes and sperm whales) cetacean is detected at or within the established exclusion zone (200-m exclusion zone during equipment positioning systems use; 400-m exclusion zone during the operation of the sub-bottom profiler), an immediate shutdown of the HRG survey equipment is required. Subsequent restart of the electromechanical survey equipment must use the ramp-up procedures described above and may only occur following clearance of the exclusion zone for 60 minutes. These are conservative shutdown zones, as the 200 and 400-m exclusion radii exceed the distances to the estimated Level B harassment isopleths (Table 1).

    As per the BOEM Lease, if a delphinoid cetacean or pinniped is detected at or within the exclusion zone, the HRG survey equipment (including the sub-bottom profiler) must be powered down to the lowest power output that is technically feasible. Subsequent power up of the survey equipment must use the ramp-up procedures described above and may occur after (1) the exclusion zone is clear of a delphinoid cetacean and/or pinniped for 60 minutes or (2) a determination by the PSO after a minimum of 10 minutes of observation that the delphinoid cetacean or pinniped is approaching the vessel or towed equipment at a speed and vector that indicates voluntary approach to bow-ride or chase towed equipment.

    If the HRG sound source (including the sub-bottom profiler) shuts down for reasons other than encroachment into the exclusion zone by a marine mammal including but not limited to a mechanical or electronic failure, resulting in the cessation of sound source for a period greater than 20 minutes, a restart for the HRG survey equipment (including the sub-bottom profiler) is required using the full ramp-up procedures and clearance of the exclusion zone of all cetaceans and pinnipeds for 60 minutes. If the pause is less than 20 minutes, the equipment may be restarted as soon as practicable at its operational level as long as visual surveys were continued diligently throughout the silent period and the exclusion zone remained clear of cetaceans and pinnipeds. If the visual surveys were not continued diligently during the pause of 20 minutes or less, a restart of the HRG survey equipment (including the sub-bottom profiler) is required using the full ramp-up procedures and clearance of the exclusion zone for all cetaceans and pinnipeds for 60 minutes.

    Geotechnical Survey (DP Thrusters)— During geotechnical survey activities, a constant position over the drill, coring, or deep cone penetration test site must be maintained to ensure the integrity of the survey equipment. Any stoppage of DP thruster during the proposed geotechnical activities has the potential to result in significant damage to survey equipment. Therefore, during geotechnical survey activities if marine mammals enter or approach the established 3,500-m 120 dB isopleth monitoring zone, Bay State Wind shall reduce DP thruster to the maximum extent possible, except under circumstances when reducing DP thruster use would compromise safety (both human health and environmental) and/or the integrity of the equipment. Reducing thruster energy will effectively reduce the potential for exposure of marine mammals to sound energy. After decreasing thruster energy, PSOs will continue to monitor marine mammal behavior and determine if the animal(s) is moving towards or away from the established monitoring zone. If the animal(s) continues to move towards the sound source then DP thruster use would remain at the reduced level. Normal use will resume when PSOs report that the marine mammals have moved away from and remained clear of the monitoring zone for a minimum of 60 minutes since the last sighting.

    Mitigation Conclusions

    NMFS has carefully evaluated Bay State Wind's mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the proposed measures, as well as other measures considered by NMFS, NMFS has determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, i.e., presence, abundance, distribution, and/or density of species.

    2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (e.g., sound or visual stimuli), through better understanding of one or more of the following: The action itself and its environment (e.g., sound source characterization, propagation, and ambient noise levels); the affected species (e.g., life history or dive pattern); the likely co-occurrence of marine mammal species with the action (in whole or part) associated with specific adverse effects; and/or the likely biological or behavioral context of exposure to the stressor for the marine mammal (e.g., age class of exposed animals or known pupping, calving, or feeding areas).

    3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible, e.g., at what distance or received level).

    4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: The long-term fitness and survival of an individual; or the population, species, or stock (e.g., through effects on annual rates of recruitment or survival).

    5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (e.g., through characterization of longer-term contributions of multiple sound sources to rising ambient noise levels and assessment of the potential chronic effects on marine mammals).

    6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.

    7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.

    8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.

    Monitoring Measures

    Bay State Wind submitted a marine mammal monitoring and reporting plan as part of the IHA application.

    Visual Monitoring—Visual monitoring of the established Level B harassment zones (400-m radius for sub-bottom profiler and 200-m radius for equipment positioning system use during HRG surveys [note that these are the same as the mitigation exclusion/shutdown zones established for HRG survey sound sources]; 3,500-m radius during DP thruster use [note that this is the same as the mitigation powerdown zone established for DP thruster sound sources]) will be performed by qualified and NMFS-approved PSOs (see discussion of PSO qualifications and requirements in Marine Mammal Exclusion Zones above).

    The PSOs will begin observation of the monitoring zone during all HRG survey activities and all geotechnical operations where DP thrusters are employed. Observations of the monitoring zone will continue throughout the survey activity and/or while DP thrusters are in use. PSOs will be responsible for visually monitoring and identifying marine mammals approaching or entering the established monitoring zone during survey activities.

    Observations will take place from the highest available vantage point on the survey vessel. General 360 degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence.

    Data on all PSO observations will be recorded based on standard PSO collection requirements. This will include dates and locations of survey operations; vessel activity during sighting, time and location (i.e., distance from sound source) of observation; weather conditions (i.e., percent cloud cover, visibility, percent glare); water conditions (i.e., Beaufort sea-state, tidal state, swell); details of the sightings (species, description of observed animal, sex, age classification [if known], numbers); and reaction of the animal(s) to relevant sound source (if any) and observed animal behavior (e.g., avoidance, approach), including bearing and direction of travel. The data sheet will be provided to both NMFS and BOEM for review and approval prior to the start of survey activities. In addition, prior to initiation of survey work, all crew members will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the survey supervisors and crews, the PSOs, and Bay State Wind. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures.

    Acoustic Field Verification—As per the requirements of the BOEM Lease, field verification of the exclusion/monitoring zones will be conducted to determine whether the proposed zones correspond accurately to the relevant isopleths and are adequate to minimize impacts to marine mammals. The details of the field verification strategy will be provided in a Field Verification Plan no later than 45 days prior to the commencement of field verification activities.

    Bay State Wind must conduct field verification of the exclusion zone (the 160 dB isopleth) for HRG survey equipment and the powerdown zone (the 120 dB isopleth) for DP thruster use for all equipment operating below 200 kHz. Bay State Wind must take acoustic measurements at a minimum of two reference locations and in a manner that is sufficient to establish source level (peak at 1 meter) and distance to the 180 dB and 160 dB isopleths (the Level A and B harassment zones for HRG surveys) and 120 dB isopleth (the Level B harassment zone) for DP thruster use. Sound measurements must be taken at the reference locations at two depths (i.e., a depth at mid-water and a depth at approximately 1 meter [3.28 ft] above the seafloor).

    Bay State Wind may use the results from its field-verification efforts to request modification of the exclusion/monitoring zones for the HRG or geotechnical surveys. Any new exclusion/monitoring zone radius proposed by Bay State Wind must be based on the most conservative measurements (i.e., the largest safety zone configuration) of the target Level A or Level B harassment acoustic threshold zones. The modified zone must be used for all subsequent use of field-verified equipment. Bay State Wind must obtain approval from NMFS and BOEM of any new exclusion/monitoring zone before it may be implemented.

    Reporting Measures

    Bay State Wind will provide the following reports as necessary during survey activities:

    • Bay State Wind will contact NMFS and BOEM within 24 hours of the commencement of survey activities and again within 24 hours of the completion of the activity.

    • As per the BOEM Lease: Any observed significant behavioral reactions (e.g., animals departing the area) or injury or mortality to any marine mammals must be reported to NMFS and BOEM within 24 hours of observation. Dead or injured protected species are reported to the NMFS Greater Atlantic Regional Fisheries Office Stranding Hotline (800-900-3622) within 24 hours of sighting, regardless of whether the injury is caused by a vessel. In addition, if the injury or death was caused by a collision with a project related vessel, Bay State Wind must ensure that NMFS and BOEM are notified of the strike within 24 hours. Bay State Wind must use the form included as Appendix A to Addendum C of the Lease to report the sighting or incident. If Bay State Wind is responsible for the injury or death, the vessel must assist with any salvage effort as requested by NMFS. Additional reporting requirements for injured or dead animals are described below (Notification of Injured or Dead Marine Mammals).

    Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified HRG and geotechnical activities lead to an injury of a marine mammal (Level A harassment) or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Bay State Wind would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NOAA Greater Atlantic Regional Fisheries Office (GARFO) Stranding Coordinator. The report would include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities would not resume until NMFS is able to review the circumstances of the event. NMFS would work with Bay State Wind to minimize reoccurrence of such an event in the future. Bay State Wind would not resume activities until notified by NMFS.

    In the event that Bay State Wind discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition), Bay State Wind would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the GARFO Stranding Coordinator. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Bay State Wind to determine if modifications in the activities are appropriate.

    In the event that Bay State Wind discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Bay State Wind would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Greater Atlantic Regional Fisheries Office Regional Stranding Coordinator, within 24 hours of the discovery. Bay State Wind would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Bay State Wind can continue its operations under such a case.

    • Within 90 days after completion of the marine site characterization survey activities, a draft technical report will be provided to NMFS and BOEM that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring (as identified above in Visual Monitoring), estimates the number of marine mammals that may have been taken during survey activities, and provides an interpretation of the results and effectiveness of all monitoring tasks. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.

    • In addition to the reporting requirements outlined above, Bay State Wind will provide an assessment report of the effectiveness of the various mitigation techniques, i.e. visual observations during day and night, compared to the PAM detections/operations. This will be submitted as a draft to NMFS and BOEM 30 days after the completion of the HRG and geotechnical surveys and as a final version 60 days after completion of the surveys.

    Estimated Take by Incidental Harassment

    Project activities that have the potential to harass marine mammals, as defined by the MMPA, include underwater noise from operation of the HRG survey sub-bottom profilers and equipment positioning systems, and noise propagation associated with the use of DP thrusters during geotechnical survey activities that require the use of a DP drill ship. Harassment could take the form of temporary threshold shift, avoidance, or other changes in marine mammal behavior. NMFS anticipates that impacts to marine mammals would be in the form of behavioral harassment and no take by injury, serious injury, or mortality is proposed. NMFS does not anticipate take resulting from the movement of vessels associated with construction because there will be a limited number of vessels moving at slow speeds over a relatively shallow, nearshore area.

    The basis for the take estimate is the number of marine mammals that would be exposed to sound levels in excess of NMFS' Level B harassment criteria for impulsive noise (160 dB re 1 μPa (rms) and continuous noise (120 dB re 1 μPa (rms.)). NMFS' current acoustic exposure criteria for estimating take are shown in Table 3 below. Bay State Wind's modeled distances to these acoustic exposure criteria are shown in Tables 1 and 2. Details on the model characteristics and results are provided in the hydroacoustic modeling assessment found in Appendix A of the IHA application. As discussed in the application and in Appendix A, modeling took into consideration sound sources using the loudest potential operational parameters, bathymetry, geoacoustic properties of the Lease Area, time of year, and marine mammal hearing ranges. Results from the hydroacoustic modeling assessment showed that estimated maximum critical distance to the 160 dB re 1 μPa (rms) MMPA threshold for all water depths for the HRG survey sub-bottom profilers (the HRG survey equipment with the greatest potential for effect on marine mammal) was approximately 380 m from the source (see Table 1), and the estimated maximum critical distance to the 120 dB re 1 μPa (rms) MMPA threshold for all water depths for the drill ship DP thruster was approximately 3,400 m from the source (see Table 2). Bay State Wind and NMFS believe that these estimates represent the worst-case scenario and that the actual distances to the Level B harassment threshold may be shorter.

    Table 3—NMFS' Current Acoustic Exposure Criteria Criterion Criterion definition Threshold Non-Explosive Sound: Level A Harassment (Injury) Permanent Threshold Shift (PTS) (Any level above that which is known to cause TTS) 180 dB re 1 μPa-m (cetaceans)/190 dB re 1 μPa-m (pinnipeds) root mean square (rms). Level B Harassment Behavioral Disruption (for impulse noises) 160 dB re 1 μPa-m (rms). Level B Harassment Behavioral Disruption (for continuous noise) 120 dB re 1 μoPa-m (rms).

    Bay State Wind estimated species densities within the proposed project area in order to estimate the number of marine mammal exposures to sound levels above the 120 dB Level B harassment threshold for continuous noise (i.e., DP thrusters) and the 160 dB Level B harassment threshold for intermittent, impulsive noise (i.e., pingers and sub-bottom profiler). Research indicates that marine mammals generally have extremely fine auditory temporal resolution and can detect each signal separately (e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov 1995; Mooney et al., 2009b), especially for species with echolocation capabilities. Therefore, it is likely that marine mammals would perceive the acoustic signals associated with the HRG survey equipment as being intermittent rather than continuous, and we base our takes from these sources on exposures to the 160 dB threshold.

    The data used as the basis for estimating cetacean species density for the Lease Area are sightings per unit effort (SPUE) taken from Kenney and Vigness-Raposa (2009). SPUE (or, the relative abundance of species) is derived by using a measure of survey effort and number of individual cetaceans sighted. Species density (animals per km2) can be computed by dividing the SPUE value by the width of the marine mammal survey track, and numbers of animals can be computed by multiplying the species density by the size of the geographic area in question (km2). SPUE allows for comparison between discrete units of time (i.e. seasons) and space within a project area (Shoop and Kenney 1992). SPUE calculated by Kenney and Vigness-Raposa (2009) was derived from a number of sources including: (1) North Atlantic Right Whale Consortium (NARWC) database; (2) University of Rhode Island Cetacean and Turtle Assessment Program (CeTAP); (3) sightings data from the Coastal Research and Education Society of Long Island, Inc. and Okeanos Ocean Research Foundation; (4) the Northeast Regional Stranding network (marine mammals); and (5) the NOAA Northeast Fisheries Science Center's Fisheries Sampling Branch.

    The OPAREA Density Estimates (U.S. Department of the Navy 2007) were used for estimating takes for harbor and gray seals. In the proposed IHA, NMFS had applied an 80 percent reduction factor for harbor and gray seal densities based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder 2000; Ronald and Gots 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal), and this reduction factor is no longer appropriate for calculating takes for harbor and gray seals.

    The methodology for calculating takes was described in the Federal Register notice for the proposed IHA (81 FR 19557; April 5, 2016). Estimated takes were calculated by multiplying the species density (per 100 km2) by the zone of influence (ZOI), multiplied by the number of days of the specified activity. A detailed description of the acoustic modeling used to calculate zones of influence is provided in the acoustic modeling assessment found in Appendix A of the IHA application (also see the discussion in the “Mitigation” section above).

    Bay State Wind used a ZOI of 23.6 m2 (61 km2) and a survey period of 30 days to estimate take from use of the HRG survey equipment during geophysical survey activities. The ZOI is based on the worst case (since it assumes the higher powered GeoSource 200 sparker will be operating all the time) ensonified area of 380 m, and a maximum survey trackline of 49 mi (79 km) per day. Based on the proposed HRG survey schedule, take calculations were based on the species density as derived from seasonal SPUE data reported in Kenney and Vigness-Raposa (2009) and seasonal OPAREA density estimates (U.S. Department of the Navy 2007). The resulting take estimates (rounded to the nearest whole number) are presented in Table 4.

    Table 4—Estimated Level B Harassment Takes for HRG Survey Activities Species Density 1
  • (number/100 km2)
  • Calculated take
  • (number)
  • Take
  • authorization
  • (number)
  • Percentage of stock
  • potentially
  • affected
  • North Atlantic Right Whale 0.07 1.28 1 0.22 Humpback Whale 0.05 0.92 1 0.01 Fin Whale 0.14 2.56 3 0.19 Minke Whale 0.44 8.05 8 0.04 Common Dolphin 8.21 150.24 150 0.12 Atlantic White-sided Dolphin 7.46 136.52 137 0.28 Harbor Porpoise 0.23 4.21 4 0.01 Harbor Seal 2 9.74 178.24 178 0.23 Gray Seal 2 14.16 259.13 259 0.07 1 Densities have been updated since the publishing of the proposed IHA to more accurately reflect the seasonality of the proposed HRG survey activities (August-September). Seasonal densities, and resulting takes, depicted in the proposed IHA were based on a projected spring HRG survey, which is no longer accurate. Despite this change in seasonal densities and take numbers there were no changes in our analysis or negligible impact determination since the publishing of the proposed IHA. 2 An 80 percent reduction factor for harbor and gray seal densities was applied in the proposed IHA based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal). Therefore, NMFS no longer considers this reduction factor appropriate for calculating takes for harbor and gray seals.

    Bay State Wind used a ZOI of 9.8 m2 (25.4 km2) and a maximum DP thruster use period of 6 days to estimate take from use of the DP thruster during geotechnical survey activities. The ZOI represents the worst-case ensonified area across the three representative water depths within the Lease Area (125 ft, 144 ft, and 177 ft [38m, 44 m, and 54 m]). Based on the proposed geotechnical survey schedule, take calculations were based on the species density as derived from seasonal abundance data reported in Kenney and Vigness-Raposa (2009) and seasonal OPAREA density estimates (U.S. Department of the Navy 2007) (Table 5). The resulting take estimates (rounded to the nearest whole number) based upon these conservative assumptions for common and Atlantic white-sided dolphins are presented in Table 5. These numbers are based on six days and represent only 0.011 and 0.022 percent of the stock for these two species, respectively. Take calculations for North Atlantic right whale, humpback whale, fin whale, minke whale, harbor porpoise, gray seal, and harbor seal are at or near zero (refer to the IHA application); therefore, no takes for these species are requested or proposed for authorization.

    Table 5—Estimated Level B Harassment Takes for Geotechnical Survey Activities Species Fall Density
  • (number/100 km2)
  • Calculated take
  • (number)
  • Take
  • authorization
  • (number)
  • Percentage of stock
  • potentially
  • affected
  • Common Dolphin 8.21 12.5 13 0.01 Atlantic White-sided Dolphin 7.46 11 11 0.02

    Bay State Wind's authorized take numbers are provided in Tables 4 and 5. Bay State Wind's calculations do not take into account whether a single animal is harassed multiple times or whether each exposure is a different animal. Therefore, the numbers in Tables 4 and 5 are the maximum number of animals that may be harassed during the HRG and geotechnical surveys (i.e., Bay State Wind assumes that each exposure event is a different animal). These estimates do not account for prescribed mitigation measures that Bay State Wind would implement during the specified activities and the fact that shutdown/powerdown procedures shall be implemented if an animal enters the Level B harassment zone (160 dB and 120 dB for HRG survey equipment and DP thruster use, respectively), further reducing the potential for any takes to occur during these activities.

    Analysis and Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes, alone, is not enough information on which to base an impact determination, as the severity of harassment may vary greatly depending on the context and duration of the behavioral response, many of which would not be expected to have deleterious impacts on the fitness of any individuals. In determining whether the expected takes will have a negligible impact, in addition to considering estimates of the number of marine mammals that might be “taken,” NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and the status of the species.

    To avoid repetition, the discussion of our analyses applies to all the species listed in Tables 4 and 5, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stocks that would lead to a different analysis for this activity.

    As discussed in the “Potential Effects” section of the notice of the proposed IHA (81 FR 19557; April 5, 2016; pages 19561-19567), permanent threshold shift, masking, non-auditory physical effects, and vessel strike are not expected to occur. There is some potential for limited TTS; however, animals in the area would likely incur no more than brief hearing impairment (i.e., TTS) due to generally low SPLs—and in the case of the HRG survey equipment use, highly directional beam pattern, transient signals, and moving sound sources—and the fact that most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS or PTS. Further, once an area has been surveyed, it is not likely that it will be surveyed again, therefore reducing the likelihood of repeated impacts within the project area.

    Potential impacts to marine mammal habitat were discussed previously in the “Anticipated Effects on Marine Mammal Habitat” section of the notice of the proposed IHA (81 FR 19557; April 5, 2016; page 19567). Marine mammal habitat may be impacted by elevated sound levels and some sediment disturbance, but these impacts would be temporary. Feeding behavior is not likely to be significantly impacted, as marine mammals appear to be less likely to exhibit behavioral reactions or avoidance responses while engaged in feeding activities (Richardson et al., 1995). Prey species are mobile, and are broadly distributed throughout the Lease Area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. Furthermore, there are no feeding areas, rookeries, or mating grounds known to be biologically important to marine mammals within the proposed project area. A biologically important area (BIA) for feeding for North Atlantic right whale encompasses the Lease Area (LaBrecque, et al., 2015); however, there is no temporal overlap between the BIA (effective March-April; November-December) and the proposed survey activities. ESA-listed species for which takes are proposed are North Atlantic right, humpback, and fin whales. Recent estima