Federal Register Vol. 81, No.178,

Federal Register Volume 81, Issue 178 (September 14, 2016)

Page Range63051-63360
FR Document

81_FR_178
Current View
Page and SubjectPDF
81 FR 63243 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period for the Exchange's Retail Liquidity ProgramPDF
81 FR 63359 - Patriot Day and National Day of Service and Remembrance, 2016PDF
81 FR 63357 - National Grandparents Day, 2016PDF
81 FR 63355 - World Suicide Prevention Day, 2016PDF
81 FR 63353 - National Days of Prayer and Remembrance, 2016PDF
81 FR 63349 - National Hispanic-Serving Institutions Week, 2016PDF
81 FR 63203 - Utah Resource Advisory Council MeetingPDF
81 FR 63153 - Tribal Transportation Self-Governance Program; Negotiated Rulemaking Second MeetingPDF
81 FR 63145 - Pacific Island Pelagic Fisheries; 2016 U.S. Territorial Longline Bigeye Tuna Catch LimitsPDF
81 FR 63179 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
81 FR 63099 - Secretary's Final Supplemental Priority for Discretionary Grant ProgramsPDF
81 FR 63258 - Ozinga Bros., Inc.-Continuance in Control Exemption-Chicago Port Railroad CompanyPDF
81 FR 63219 - Bulk Manufacturer of Controlled Substances Application: Alcami Wisconsin CorporationPDF
81 FR 63168 - Iowa State University of Science and Technology, et al.; Notice of Consolidated Decision on Applications for Duty-Free Entry of Electron MicroscopePDF
81 FR 63098 - Security Zone; Protection of Military Cargo, Captain of the Port Zone Puget SoundPDF
81 FR 63205 - Certain Amorphous Silica Fabric From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
81 FR 63257 - Notice of 30 Day Public Comment Period Regarding the National Interest Determination for Otay Water District's Presidential Permit ApplicationPDF
81 FR 63178 - Notification of a Teleconference of the Science Advisory Board Economy-Wide Modeling PanelPDF
81 FR 63257 - 60-Day Notice of Proposed Information Collection: PEPFAR Program ExpendituresPDF
81 FR 63172 - Community Bank Advisory Council MeetingPDF
81 FR 63156 - Allocations of Cross-State Air Pollution Rule Allowances From New Unit Set-Asides for 2016 Control PeriodsPDF
81 FR 63200 - Order of Succession for the Office of the Chief Information OfficerPDF
81 FR 63199 - 60-Day Notice of Proposed Information Collection: Public Housing Capital Fund ProgramPDF
81 FR 63158 - Water Quality Standards; Establishment of Revised Numeric Criteria for Selenium for the San Francisco Bay and Delta, State of California; Extension of Public Comment PeriodPDF
81 FR 63206 - United States v. Nexstar Broadcasting Group Inc., et al.; Proposed Final Judgment and Competitive Impact StatementPDF
81 FR 63226 - Intertek Testing Services NA, Inc.: Application for Expansion of Recognition and Proposed Modification to the NRTL Program's List of Appropriate Test StandardsPDF
81 FR 63229 - Underwriters Laboratories, Inc.: Application for Expansion of RecognitionPDF
81 FR 63222 - Importer of Controlled Substances RegistrationPDF
81 FR 63219 - Bulk Manufacturer of Controlled Substances RegistrationPDF
81 FR 63192 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
81 FR 63220 - Importer of Controlled Substances Application: United States Pharmacopeial ConventionPDF
81 FR 63222 - Bulk Manufacturer of Controlled Substances Application: AMPAC Fine Chemicals LLCPDF
81 FR 63222 - Importer of Controlled Substances Application: Cambrex Charles CityPDF
81 FR 63223 - Importer of Controlled Substances Application: Sigma-Aldrich International GMBH-Sigma Aldrich Company LLCPDF
81 FR 63221 - Bulk Manufacturer of Controlled Substances Application: Insys Manufacturing LLCPDF
81 FR 63220 - Bulk Manufacturer of Controlled Substances Application: Halo Pharmaceutical, Inc.PDF
81 FR 63259 - Agency Information Collection Activity (Application for Residential Care Home Program Sponsor Application, VA Form 10-2407) Under OMB Review Activity: Comment RequestPDF
81 FR 63225 - Notice of Lodging Proposed Consent DecreePDF
81 FR 63160 - Endangered and Threatened Wildlife and Plants; 90-Day Findings on 10 PetitionsPDF
81 FR 63158 - Federal Acquisition Regulation: Audit of Settlement ProposalsPDF
81 FR 63154 - Premium Tax Credit NPRM VI; CorrectionPDF
81 FR 63166 - Fremont and Winema Resource Advisory CommitteePDF
81 FR 63134 - Federal Management Regulation; Nondiscrimination Clarification in the Federal Workplace; CorrectionPDF
81 FR 63186 - Safety and Occupational Health Study Section (SOHSS), National Institute for Occupational Safety and Health (NIOSH or Institute)PDF
81 FR 63186 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH)PDF
81 FR 63225 - Discontinuing the Metallic Handcuffs Compliance Testing Program and Request for Public Comment on Draft Minimum Scheme Requirements to Certify Criminal Justice Restraints Described in NIJ Standard 1001.00PDF
81 FR 63171 - Digital Economy Board of Advisors MeetingPDF
81 FR 63202 - Wildlife and Hunting Heritage Conservation Council; Public MeetingPDF
81 FR 63173 - Notice of Availability of Record of Decision for the Final Environmental Impact Statement for Land-Water Interface and Service Pier Extension at Naval Base Kitsap Bangor, Kitsap County, WashingtonPDF
81 FR 63204 - Notice of Cancellation To Prepare a Draft Environmental Impact Statement for the San Carlos Irrigation Project, ArizonaPDF
81 FR 63231 - Notice of Public MeetingPDF
81 FR 63191 - Vaccines and Related Biological Products Advisory Committee; CancellationPDF
81 FR 63138 - Possession, Use, and Transfer of Select Agents and Toxins-Addition of Bacillus Cereus Biovar Anthracis to the HHS List of Select Agents and ToxinsPDF
81 FR 63051 - Special Conditions: Lufthansa Technik, AG, Boeing Model 737-700 Airplanes; Large, Non-Structural Glass in the Passenger CompartmentPDF
81 FR 63259 - Genomic Medicine Program Advisory Committee; Notice of MeetingPDF
81 FR 63143 - NASA Federal Acquisition Regulation Supplement: Revised Voucher Submission & Payment Process (NFS Case 2016-N025)PDF
81 FR 63176 - Pioneer Wind Park I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 63175 - Combined Notice of FilingsPDF
81 FR 63176 - Combined Notice of Filings #1PDF
81 FR 63174 - Combined Notice of Filings #2PDF
81 FR 63178 - Combined Notice of Filings #1PDF
81 FR 63237 - Proposed Collection; Comment RequestPDF
81 FR 63236 - Proposed Collection; Comment RequestPDF
81 FR 63195 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
81 FR 63238 - MIAX PEARL, LLC; Notice of Filing of Application for Registration as a National Securities Exchange Under Section 6 of the Securities Exchange Act of 1934PDF
81 FR 63239 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of Bats BZX Exchange, Inc.PDF
81 FR 63249 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add Specificity to the Definition of a Professional in the Exchange's RulesPDF
81 FR 63245 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Exchange Rule 100(a)(37C) (Definitions) To Add Specificity to the Definition of a ProfessionalPDF
81 FR 63235 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Fees for Use of Bats EDGX Exchange, Inc.PDF
81 FR 63252 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add Specificity to the Definition of a Professional in the Exchange's RulesPDF
81 FR 63241 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of Bats BZX Exchange, Inc.PDF
81 FR 63243 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees SchedulePDF
81 FR 63233 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Amend the Fees SchedulePDF
81 FR 63231 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Exchange's Pricing Schedule Under Section VIII With Respect To Execution and Routing of Orders in Securities Priced at $1 or More Per SharePDF
81 FR 63193 - National Human Genome Research Institute; Notice of Closed MeetingPDF
81 FR 63192 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingPDF
81 FR 63193 - National Institute of Nursing Research; Notice of Closed MeetingsPDF
81 FR 63192 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 63193 - National Institute on Drug Abuse; Notice of Closed MeetingsPDF
81 FR 63194 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 63194 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 63175 - Revisions to Procedural Regulations Governing Transportation by Intrastate Pipelines; Electronic Tariff Filings; Notice of Changes to Etariff Part 284 Type of Filing CodesPDF
81 FR 63174 - FFP Project 121, LLC; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
81 FR 63173 - Mr. Ray F. Ward; Notice of Authorization for Continued Project OperationPDF
81 FR 63177 - Medallion Pipeline Company, LLC; Notice of Petition for Declaratory OrderPDF
81 FR 63224 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved Collection; National Clandestine Laboratory Seizure ReportPDF
81 FR 63203 - Proposed Information Collection; Backcountry/Wilderness Use PermitPDF
81 FR 63238 - Advisors Series Trust and Orinda Asset Management, LLC; Notice of Intention To Rescind an OrderPDF
81 FR 63195 - Privacy Act of 1974; Notice of a Computer Matching Program Between the Department of Housing and Urban Development (HUD) and the Department of Homeland Security, Federal Emergency Management Agency (DHS/FEMA)PDF
81 FR 63201 - Order of Succession for the Office of the Chief Human Capital OfficerPDF
81 FR 63201 - Order of Succession for the Office of Public AffairsPDF
81 FR 63166 - Request for Comments for the Commission on Evidence-Based PolicymakingPDF
81 FR 63168 - Certain Carbon and Alloy Steel Cut-to-Length Plate From the Republic of Korea: Preliminary Negative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
81 FR 63075 - Special Local Regulations and Safety Zones; Recurring Marine Events and Fireworks Displays Within the Fifth Coast Guard DistrictPDF
81 FR 63107 - Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5PDF
81 FR 63134 - Federal Travel Regulation; Clarifying Agency Responsibilities Concerning Reimbursement for Automatic Teller Machine (ATM) Fees and Laundry, Cleaning and Pressing of Clothing ExpensesPDF
81 FR 63106 - Air Plan Approval; GA Infrastructure Requirements for the 2010 1-Hour NO2PDF
81 FR 63179 - Sunshine Act; Notice of Meeting; Federal Retirement Thrift Investment Board Member Meeting, September 19, 2016 8:30 a.m. (In-Person), 77 K Street NE., Board Room 10th Floor, Washington, DC 20002PDF
81 FR 63137 - Federal Travel Regulation; Optimal Use of the Government Contractor Issued Travel Charge CardPDF
81 FR 63053 - New Animal Drugs for Use in Animal Feeds; Chlortetracycline and Sulfamethazine; Chlortetracycline, Procaine Penicillin, and SulfamethazinePDF
81 FR 63191 - Withdrawal of Approval of Part of a New Animal Drug Application; Chlortetracycline, Procaine Penicillin, and SulfamethazinePDF
81 FR 63297 - Privacy Act of 1974; Systems of RecordsPDF
81 FR 63187 - The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals; Establishing Appropriate Durations of Therapeutic Administration; Request for CommentsPDF
81 FR 63051 - Rural Broadband Access Loans and Loan Guarantees; CorrectionPDF
81 FR 63155 - Revision of Standards and Procedures for the Enforcement of Section 274B of the Immigration and Nationality ActPDF
81 FR 63149 - Modernization of the Customs Brokers ExaminationPDF
81 FR 63102 - Air Plan Approval; VT; Prevention of Significant Deterioration, PM2.5PDF
81 FR 63156 - Air Plan Approval; VT; Prevention of Significant Deterioration, PM2.5PDF
81 FR 63054 - Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing ActPDF
81 FR 63104 - Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Second Ten-Year PM10PDF
81 FR 63171 - Proposed Information Collection; Comment Request; Analysis and Review of Ocean Exploration Video ProductsPDF
81 FR 63323 - Controlled Unclassified InformationPDF
81 FR 63112 - National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional BoilersPDF
81 FR 63261 - Department of Energy Property Management RegulationsPDF
81 FR 63131 - Acrylic Polymers; Tolerance ExemptionPDF

Issue

81 178 Wednesday, September 14, 2016 Contents Agriculture Agriculture Department See

Forest Service

See

Rural Utilities Service

Antitrust Division Antitrust Division NOTICES Proposed Final Judgments and Competitive Impact Statements: United States v. Nexstar Broadcasting Group Inc., et al., 63206-63219 2016-22086 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Meetings: Community Bank Advisory Council, 63172-63173 2016-22091 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Board on Radiation and Worker Health, National Institute for Occupational Safety and Health, 63186-63187 2016-22058 Safety and Occupational Health Study Section, National Institute for Occupational Safety and Health, 63186 2016-22059 Coast Guard Coast Guard RULES Security Zones: Protection of Military Cargo, Captain of the Port Zone Puget Sound, 63098-63099 2016-22098 Special Local Regulations: Recurring Marine Events and Fireworks Displays within the Fifth Coast Guard District, 63075-63098 2016-21996 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Requests for Information: Commission on Evidence-Based Policymaking, 63166-63168 2016-22002
Defense Department Defense Department See

Navy Department

PROPOSED RULES Federal Acquisition Regulations: Audit of Settlement Proposals, 63158-63159 2016-22070
Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Applications: Cambrex Charles City, 63222 2016-22077 Sigma-Aldrich International GMBH-Sigma Aldrich Co., LLC, 63223-63224 2016-22076 United States Pharmacopeial Convention, 63220-63221 2016-22079 Importers of Controlled Substances; Registrations: Wildlife Laboratories, Inc., et al., 63222 2016-22083 Manufacturers of Controlled Substances; Applications: Alcami Wisconsin Corp., 63219 2016-22100 AMPAC Fine Chemicals, LLC, 63222-63223 2016-22078 Halo Pharmaceutical, Inc., 63220 2016-22074 Insys Manufacturing, LLC, 63221 2016-22075 Manufacturers of Controlled Substances; Registrations: Johnson Matthey, Inc., Mallinckrodt, LLC, American Radiolabeled Chemicals, et al., 63219-63220 2016-22082 Education Department Education Department RULES Final Priorities: Discretionary Grant Programs, 63099-63102 2016-22104 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Department of Energy Property Management Regulations, 63262-63295 2016-21309
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Colorado; Second Ten-Year PM10 Maintenance Plan for Lamar, 63104-63105 2016-21755 Georgia; Infrastructure Requirements for the 2010 1-hour NO2 NAAQS, 63106-63107 2016-21991 North Carolina; New Source Review for Fine Particulate Matter (PM2.5), 63107-63112 2016-21994 Vermont; Prevention of Significant Deterioration, PM2.5, 63102-63104 2016-21881 Exemptions from the Requirements of a Tolerance: Acrylic Polymers, 63131-63134 2016-20853 National Emission Standards: Hazardous Air Pollutants for Area Sources; Industrial, Commercial, and Institutional Boilers, 63112-63131 2016-21334 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Vermont; Prevention of Significant Deterioration, PM2.5, 63156 2016-21880 Allocations of Cross-State Air Pollution Rule Allowances from New Unit Set-Asides for 2016 Control Periods, 63156-63158 2016-22090 Water Quality Standards: Establishment of Revised Numeric Criteria for Selenium for the San Francisco Bay and Delta, CA, 63158 2016-22087 NOTICES Meetings: Science Advisory Board Economy-Wide Modeling Panel; Teleconference, 63178-63179 2016-22093 Federal Aviation Federal Aviation Administration RULES Special Conditions: Lufthansa Technik, AG, Boeing Model 737-700 Airplanes; Large, Non-Structural Glass in the Passenger Compartment, 63051-63053 2016-22048 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: FFP Project 121, LLC, 63174 2016-22015 Authorizations for Continued Operations: Ray F. Ward, Ward Mill Hydroelectric Project, 63173-63174 2016-22014 Changes to ETariff Part 284 Type of Filing Codes, 63175 2016-22016 Combined Filings, 63174-63178 2016-22040 2016-22041 2016-22042 2016-22043 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Pioneer Wind Park I, LLC, 63176 2016-22044 Petitions for Declaratory Orders: Medallion Pipeline Co., LLC, 63177-63178 2016-22013 Federal Highway Federal Highway Administration PROPOSED RULES Tribal Transportation Self-Governance Program: Negotiated Rulemaking Second Meeting, 63153-63154 2016-22128 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings; Sunshine Act, 63179 2016-21990 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63179-63186 2016-22106 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: 90-Day Findings on 10 Petitions, 63160-63165 2016-22071 NOTICES Meetings: Wildlife and Hunting Heritage Conservation Council, 63202-63203 2016-22055 Food and Drug Food and Drug Administration RULES New Animal Drugs for Use in Animal Feeds: Chlortetracycline and Sulfamethazine; Chlortetracycline, Procaine Penicillin, and Sulfamethazine, 63053-63054 2016-21985 NOTICES Guidance: Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals; Establishing Appropriate Durations of Therapeutic Administration, 63187-63191 2016-21972 Meetings: Vaccines and Related Biological Products Advisory Committee, 63191 2016-22051 New Animal Drugs: Chlortetracycline, Procaine Penicillin, and Sulfamethazine; Withdrawal of Approval, 63191 2016-21984 Forest Forest Service NOTICES Meetings: Fremont and Winema Resource Advisory Committee, 63166 2016-22065 General Services General Services Administration RULES Federal Management Regulations: Nondiscrimination Clarification in the Federal Workplace; Correction, 63134 2016-22063 Federal Travel Regulations: Clarifying Agency Responsibilities Concerning Reimbursement for Automatic Teller Machine Fees and Laundry, Cleaning and Pressing of Clothing Expenses, 63134-63137 2016-21993 Optimal Use of the Government Contractor Issued Travel Charge Card, 63137-63138 2016-21987 PROPOSED RULES Federal Acquisition Regulations: Audit of Settlement Proposals, 63158-63159 2016-22070 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

RULES Select Agents and Toxins: Bacillus cereus Biovar anthracis, 63138-63143 2016-22049 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63192 2016-22081 Privacy Act; Computer Matching Program, 63195-63198 2016-22006
Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department RULES Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act, 63054-63075 2016-21868 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Housing Capital Fund Program, 63199-63200 2016-22088 Orders of Succession: Office of Public Affairs, 63201-63202 2016-22004 Office of the Chief Human Capital Officer, 63201 2016-22005 Office of the Chief Information Officer, 63200 2016-22089 Information Information Security Oversight Office RULES Controlled Unclassified Information, 63324-63347 2016-21665 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

Internal Revenue Internal Revenue Service PROPOSED RULES Premium Tax Credit; Correction, 63154-63155 2016-22067 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea, 63168-63171 2016-21997 Applications for Duty-Free Entry of Electron Microscopes: Iowa State University of Science and Technology, et al., 63168 2016-22099 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Amorphous Silica Fabric from China, 63205-63206 2016-22096 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Justice Programs Office

PROPOSED RULES Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 63155-63156 2016-21937 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Clandestine Laboratory Seizure Report, 63224 2016-22012 Proposed Consent Decrees: United States v. Bridlewood Development, LLC, 63225 2016-22072
Justice Programs Justice Programs Office NOTICES Minimum Scheme Requirements to Certify Criminal Justice Restraints; Discontinuance of the Metallic Handcuffs Compliance Testing Program, 63225-63226 2016-22057 Labor Department Labor Department See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Meetings: Utah Resource Advisory Council, 63203 2016-22179 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation Supplements: Revised Voucher Submission and Payment Process, 63143-63145 2016-22046 PROPOSED RULES Federal Acquisition Regulations: Audit of Settlement Proposals, 63158-63159 2016-22070 National Archives National Archives and Records Administration See

Information Security Oversight Office

National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 63194-63195 2016-22018 National Human Genome Research Institute, 63193 2016-22024 National Institute of Allergy and Infectious Diseases, 63194 2016-22019 National Institute of Neurological Disorders and Stroke, 63192 2016-22023 National Institute of Nursing Research, 63193-63194 2016-22022 National Institute on Aging, 63192-63193 2016-22021 National Institute on Drug Abuse, 63193 2016-22020 National Institute on Minority Health and Health Disparities, 63195 2016-22036 National Oceanic National Oceanic and Atmospheric Administration RULES Pacific Island Fisheries: 2016 U.S. Territorial Longline Bigeye Tuna Catch Limits, 63145-63148 2016-22111 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Analysis and Review of Ocean Exploration Video Products; Correction, 63171 2016-21722 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Backcountry/Wilderness Use Permit, 63203-63204 2016-22010 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Digital Economy Board of Advisors, 63171-63172 2016-22056 Navy Navy Department NOTICES Environmental Impact Statements; Availability, etc.: Land-Water Interface and Service Pier Extension at Naval Base Kitsap Bangor, Kitsap County, WA, 63173 2016-22054 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Expansion of Recognition Applications: Intertek Testing Services NA, Inc., 63226-63229 2016-22085 Underwriters Laboratories, Inc., 63229-63231 2016-22084 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Privacy Act; Systems of Records, 63298-63322 2016-21975 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Days of Prayer and Remembrance (Proc. 9488), 63353-63354 2016-22290 National Grandparents Day (Proc. 9490), 63357-63358 2016-22293 National Hispanic-Serving Institutions Week (Proc. 9487), 63349-63352 2016-22288 Patriot Day and National Day of Service and Remembrance (Proc. 9491), 63359-63360 2016-22294 World Suicide Prevention Day (Proc. 9489), 63355-63356 2016-22291 Presidio Presidio Trust NOTICES Meetings: Board of Directors, 63231 2016-22052 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: San Carlos Irrigation Project, AZ, 63204 2016-22053 Rural Utilities Rural Utilities Service RULES Rural Development: Rural Broadband Access Loans and Loan Guarantees; Correction, 63051 2016-21958 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63236-63237 2016-22037 2016-22038 Applications: MIAX PEARL, LLC, 63238 2016-22034 Orders: Advisors Series Trust and Orinda Asset Management, LLC; Notice of Intention to Rescind, 63238-63239 2016-22009 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 63239-63243 2016-22028 2016-22033 Bats EDGX Exchange, Inc., 63235-63236 2016-22030 C2 Options Exchange, 63233-63235 2016-22026 Chicago Board Options Exchange, Inc., 63243-63245 2016-22027 International Securities Exchange, LLC, 63252-63257 2016-22029 ISE Gemini, LLC, 63245-63248 2016-22031 ISE Mercury, LLC, 63249-63252 2016-22032 NASDAQ PHLX, LLC, 63231-63233 2016-22025 NYSE Arca, Inc., 63243 C1--2016--20062 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: President's Emergency Plan for AIDS Relief Program Expenditures, 63257-63258 2016-22092 Presidential Permit Applications: Otay Water District, 63257 2016-22094 Surface Transportation Surface Transportation Board NOTICES Continuance in Control Exemptions: Ozinga Bros., Inc.; Chicago Port Railroad Co., 63258-63259 2016-22102 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department See

Internal Revenue Service

Customs U.S. Customs and Border Protection PROPOSED RULES Modernization of the Customs Brokers Examination, 63149-63153 2016-21935 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Residential Care Home Program Sponsor Application, 63259 2016-22073 Meetings: Genomic Medicine Program Advisory Committee, 63259 2016-22047 Separate Parts In This Issue Part II Energy Department, 63262-63295 2016-21309 Part III Pension Benefit Guaranty Corporation, 63298-63322 2016-21975 Part IV National Archives and Records Administration, Information Security Oversight Office, 63324-63347 2016-21665 Part V Presidential Documents, 63349-63360 2016-22290 2016-22293 2016-22288 2016-22294 2016-22291 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.

81 178 Wednesday, September 14, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Rural Utilities Service 7 CFR Part 1738 RIN 0572-AC34 Rural Broadband Access Loans and Loan Guarantees; Correction AGENCY:

Rural Utilities Service, Agriculture.

ACTION:

Final rule; correction.

SUMMARY:

The Rural Utilities Service (RUS), an agency of the United States Department of Agriculture (USDA), is correcting a final rule that appeared in the Federal Register of June 9, 2016 (81 FR 37121). The document confirmed the interim rule which amends the Agency's regulation for the Rural Broadband Access Loan and Loan Guarantee Program (Broadband Loan Program).

DATES:

Effective September 14, 2016.

FOR FURTHER INFORMATION CONTACT:

Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, United States Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-9011, Telephone: 202-690-4492, email: [email protected]

SUPPLEMENTARY INFORMATION:

RUS published a final rule in the Federal Register on June 9, 2016, 81 FR 37121, confirming the interim rule which amends its regulation for the Rural Broadband Access Loan and Loan Guarantee Program (Broadband Loan Program). Inadvertently, an incorrect regulatory identifier number (RIN) was referenced in the headings section of the document. Under the Congressional Review Act (CRA), this rule was not designated as a “major” rule.

In FR Doc. 2016-13302, on page 37121 in the Federal Register of Thursday, June 9, 2016, appearing in the first column the following correction is made to the Headings section, RIN Number: Remove RIN 0572-AC06 and replace it with RIN 0572-AC34.

Dated: September 7, 2016. Joshua Cohen, Deputy Administrator, Rural Utilities Service.
[FR Doc. 2016-21958 Filed 9-13-16; 8:45 am] BILLING CODE P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-8832; Special Conditions No. 25-638-SC] Special Conditions: Lufthansa Technik, AG, Boeing Model 737-700 Airplanes; Large, Non-Structural Glass in the Passenger Compartment AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for Boeing Model 737-700 airplanes. This airplane, as modified by Lufthansa Technik, AG (Lufthansa), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is large, non-structural glass panels in the passenger compartment of Very Important Person (VIP) interiors of Model 737-700 airplanes modified by Lufthansa. 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 Lufthansa on September 14, 2016. We must receive your comments by October 31, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2016-8832 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1320.

SUPPLEMENTARY INFORMATION:

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

In addition, 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. The FAA made changes for clarity in response to one recent comment on similar special conditions. 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.

Comments Invited

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

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

Background

On October 15, 2015, Lufthansa applied for a supplemental type certificate to install a VIP interior and cabin system, which includes installation of large, non-structural glass panels in the passenger compartment of Boeing Model 737-700 airplanes. This airplane is a twin-jet engine, transport-category airplane. The airplane seating accommodates 34 passengers, 5 cabin crewmembers, and 4 flightcrew members. Maximum takeoff weight is 171,000 lbs.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Lufthansa must show that the Boeing Model 737-700 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A16WE, 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 Boeing Model 737-700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-700 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Boeing Model 737-700 airplane, as modified by Lufthansa, will incorporate a novel or unusual design feature associated with a VIP interior and cabin system, which is the installation of large, non-structural glass panels in the passenger compartment.

Discussion

No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 737-700 airplanes.

For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. These special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.

The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Likewise, the use of glass traditionally has been limited to windshields, and instrument and display transparencies. The regulations for certification of transport-category airplanes only address, and thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.

Other installations of large, non-structural glass items have included the following:

• Glass panels integrated onto a stairway handrail closeout.

• Glass panels mounted in doors to allow visibility through the door when desired.

• Glass doors on some galley compartments containing small amounts of service items.

These special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior.

The FAA recently received comments on proposed special conditions similar to the special conditions in this document. Notice of Proposed Special Conditions no. 25-16-03-SC, for Lufthansa modifications to the Boeing Model 747-8 airplane, was published in the Federal Register on February 25, 2016 (81 FR 9363). The Boeing Company provided comments to that notice by letter no. B-H020-REG-16-TLM-17, dated March 24, 2016. The first comment referred to the first two conditions in Notice no. 25-16-03-SC, and recommended revising the text in special condition no. 2 to more clearly define how it is different from special condition no. 1. We agreed that those two conditions could be addressed with a single test, so we combined those two conditions into a single condition, special condition no. 1, for clarity. This document also reflects that change.

Boeing commented that the load conditions in special condition no. 4, in Notice no. 25-16-03-SC, which corresponds to special condition no. 3 in this document, should include all flight and landing loads, rather than only emergency landing. These special conditions are in addition to the load requirements in the certification basis for the glass installation, rather than in lieu of the load requirements. Thus, is it not necessary to repeat that all of these loads apply to this installation. The emergency-landing load condition is not normally applied to installations of this type, but for the use of large glass in the cabin, we determined that this additional safety standard is necessary. We made no changes to special condition number 3 in response to the Boeing comments.

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 Boeing Model 737-700 airplanes modified by Lufthansa. Should Lufthansa apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model series of 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.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows: Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 737-700 airplanes modified by Lufthansa.

1. Material Fragmentation—The applicant must use tempered or otherwise treated glass to ensure that, when fractured, the glass breaks into small pieces with relatively dull edges. The glass component installation must retain all glass fragments to minimize the danger from flying glass shards or pieces. The applicant must demonstrate this characteristic by impact and puncture testing, and testing to failure. The applicant may conduct this test with or without any glass coating that may be utilized in the design.

2. Strength—In addition to meeting the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25, the glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The applicant must assess the effect of design details such as geometric discontinuities or surface finish, including but not limited to embossing and etching.

3. Retention—The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing, considering both the directional loading and resulting rebound conditions. The applicant must assess the effect of design details such as geometric discontinuities or surface finish, including but not limited to embossing and etching.

4. Instruction for Continued Airworthiness—The instructions for continued airworthiness must reflect the glass-panel fastening method used, and must ensure the reliability of the methods used (e.g., life limit of adhesives, or clamp connection). Inspection methods and intervals must be defined based upon adhesion data from the manufacturer of the adhesive, or actual adhesion test data, if necessary.

Issued in Renton, Washington, on September 7, 2016. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-22048 Filed 9-13-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 [Docket No. FDA-2016-N-0002] New Animal Drugs for Use in Animal Feeds; Chlortetracycline and Sulfamethazine; Chlortetracycline, Procaine Penicillin, and Sulfamethazine AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect the withdrawal of approval of those parts of a new animal drug application (NADA) for a 3-way, fixed-ratio, combination drug Type A medicated article that pertain to use of the procaine penicillin component for production indications in swine and to reflect the reformulation of the Type A medicated article as a 2-way, fixed-ratio, combination drug product without penicillin.

DATES:

This rule is effective September 14, 2016.

FOR FURTHER INFORMATION CONTACT:

Cindy L. Burnsteel, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0817, email: [email protected]

SUPPLEMENTARY INFORMATION:

Pharmgate LLC (Pharmgate), 1015 Ashes Dr., Suite 102, Wilmington, NC 28405 has requested that FDA withdraw approval of those parts of NADA 138-934 for PENNCHLOR SP 500 (chlortetracycline, procaine penicillin, and sulfamethazine) Type A medicated article that pertain to use of the procaine penicillin component for the production indications of growth promotion and increased feed efficiency in swine. Pharmgate requested voluntary withdrawal of approval of these indications for use because PENNCHLOR SP 500 Type A medicated article is no longer manufactured.

With the withdrawal of approval of the production indications for procaine penicillin, the product approved under NADA 138-934 was reformulated as PENNCHLOR S 40/40 (chlortetracycline and sulfamethazine) Type A Medicated Article, a 2-way, fixed-ratio, combination drug Type A medicated article that does not contain penicillin procaine and is not labeled for production indications.

The Agency has determined under 21 CFR 25.33(a) that this action is categorically excluded from the requirement to submit an environmental assessment or an environmental impact statement because it is of a type that does not individually or cumulatively have a significant effect on the human environment.

Elsewhere in this issue of the Federal Register, FDA gave notice that the approval of those parts of NADA 138-934 pertaining to the procaine penicillin component indications for growth promotion and increased feed efficiency in swine is withdrawn, effective September 14, 2016. As provided for in the regulatory text of this document, the animal drug regulations are amended to reflect this partial withdrawal of approval and subsequent product reformulation.

NADA 138-934 was identified as being affected by guidance for industry (GFI) #213 “New Animal Drugs and New Animal Drug Combination Products Administered in or on Medicated Feed or Drinking Water of Food-Producing Animals: Recommendations for Drug Sponsors for Voluntarily Aligning Product Use Conditions with GFI #209,” December 2013.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

List of Subjects in 21 CFR Part 558

Animal drugs, Animal feeds.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director of the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows:

PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 1. The authority citation for part 558 continues to read as follows: Authority:

21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.

§ 558.140 [Amended]
2. In § 558.140, in paragraph (b)(2), remove “No. 054771” and in its place add “Nos. 054771 and 069254”.
§ 558.145 [Amended]
3. In § 558.145, remove and reserve paragraph (a)(2). Dated: September 6, 2016. William T. Flynn, Acting Director, Center for Veterinary Medicine.
[FR Doc. 2016-21985 Filed 9-13-16; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 100 [Docket No. FR-5248-F-02] RIN 2529-AA94 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act AGENCY:

Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD.

ACTION:

Final rule.

SUMMARY:

This final rule amends HUD's fair housing regulations to formalize standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status, or disability. The rule specifies how HUD will evaluate complaints of quid pro quo (“this for that”) harassment and hostile environment harassment under the Fair Housing Act. It will also provide for uniform treatment of Fair Housing Act claims raising allegations of quid pro quo and hostile environment harassment in judicial and administrative forums. This rule defines “quid pro quo” and “hostile environment harassment,” as prohibited under the Fair Housing Act, and provides illustrations of discriminatory housing practices that constitute such harassment. In addition, this rule clarifies the operation of traditional principles of direct and vicarious liability in the Fair Housing Act context.

DATES:

Effective date: October 14, 2016.

FOR FURTHER INFORMATION CONTACT:

Lynn Grosso, Acting Deputy Assistant Secretary for Enforcement and Programs, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW., Room 5204, Washington DC 20410-2000; telephone number 202-402-5361 (this is not a toll-free number). Persons with hearing or speech impairments may contact this number via TTY by calling the toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Executive Summary A. Purpose of the Regulatory Action

Both HUD and the courts have long recognized that Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C. 3601 et seq.) (Fair Housing Act or Act) prohibits harassment in housing and housing-related transactions because of race, color, religion, sex, national origin, disability,1 and familial status, just as Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) prohibits such harassment in employment. But no standards had been formalized for assessing claims of harassment under the Fair Housing Act. Courts have often applied standards first adopted under Title VII to evaluate claims of harassment under the Fair Housing Act, but there are differences between the Fair Housing Act and Title VII, and between harassment in the workplace and harassment in or around one's home, that warrant this rulemaking.

1 This rule uses the term “disability” to refer to what the Fair Housing Act and its implementing regulations refer to as “handicap.” Both terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

This rule formalizes standards for evaluating claims of quid pro quo and hostile environment harassment in the housing context. The rule does so by defining “quid pro quo harassment” and “hostile environment harassment” as conduct prohibited under the Fair Housing Act, and by specifying the standards to be used to evaluate whether particular conduct creates a quid pro quo or hostile environment in violation of the Act. Such standards will apply both in administrative adjudications and in cases brought in federal and state courts under the Fair Housing Act. This rule also adds to HUD's existing Fair Housing Act regulations illustrations of discriminatory housing practices that may constitute illegal quid pro quo and hostile environment harassment.

By establishing consistent standards for evaluating claims of quid pro quo and hostile environment harassment, this rule provides guidance to providers of housing or housing-related services seeking to ensure that their properties or businesses are free of unlawful harassment. The rule also provides clarity to victims of harassment and their representatives regarding how to assess potential claims of illegal harassment under the Fair Housing Act.

In addition, this final rule clarifies when housing providers and other entities or individuals covered by the Fair Housing Act may be held directly or vicariously liable under the Act for illegal harassment, as well as for other discriminatory housing practices that violate the Act. This rule sets forth how these traditional liability standards apply in the housing context because, in HUD's experience, there has been significant misunderstanding among public and private housing providers as to the circumstances under which they will be subject to liability under the Fair Housing Act for discriminatory housing practices undertaken by others.

B. Legal Authority for the Regulation

The legal authority for this regulation is found in the Fair Housing Act, which gives the Secretary of HUD the “authority and responsibility for administering this Act.” 42 U.S.C. 3608(a). In addition, the Act provides that “[t]he Secretary may make rules (including rules for the collection, maintenance, and analysis of appropriate data) to carry out this title. The Secretary shall give public notice and opportunity for comment with respect to all rules made under this section.” 42 U.S.C. 3614a. HUD also has general rulemaking authority under the Department of Housing and Urban Development Act to make such rules and regulations as may be necessary to carry out its functions, powers and duties. See 42 U.S.C. 3535(d).

C. Summary of Major Provisions

The major provisions of this rule:

• Formalize definitions of “quid pro quo harassment” and “hostile environment harassment” under the Fair Housing Act.

• Formalize standards for evaluating claims of quid pro quo and hostile environment harassment under the Fair Housing Act.

• Add illustrations of prohibited quid pro quo and hostile environment harassment to HUD's existing Fair Housing Act regulations.

• Identify traditional principles of direct and vicarious liability applicable to all discriminatory housing practices under the Fair Housing Act, including quid pro quo and hostile environment harassment.

Please refer to section III of this preamble, entitled “This Final Rule,” for a discussion of the changes made to HUD's regulations by this final rule.

D. Costs and Benefits

This rule formalizes clear, consistent, nationwide standards for evaluating harassment claims under the Fair Housing Act. The rule does not create any new forms of liability under the Fair Housing Act and thus adds no additional costs for housing providers and others engaged in housing transactions.

The benefits of the rule are that it will assist in ensuring compliance with the Fair Housing Act by defining quid pro quo and hostile environment harassment that violates the Act and by specifying traditional principles of direct and vicarious liability, consistent with Supreme Court precedent. Articulating clear standards enables entities subject to the Fair Housing Act's prohibitions and persons protected by its terms to understand the types of conduct that constitute actionable quid pro quo and hostile environment harassment. As a result, HUD expects this rule to facilitate more effective training to avoid discriminatory harassment in housing and decrease the need for protracted litigation to resolve disputed claims.

II. Background

Title VIII of the Civil Rights Act of 1968, as amended (the Fair Housing Act or Act), prohibits discrimination in the availability and enjoyment of housing and housing-related services, facilities, and transactions because of race, color, national origin, religion, sex, disability, and familial status. 42 U.S.C. 3601-19. The Act prohibits a wide range of discriminatory housing and housing-related practices, including, among other things, making discriminatory statements, refusing to rent or sell, denying access to services, setting different terms or conditions, refusing to make reasonable modifications or accommodations, discriminating in residential real estate-related transactions, and retaliating. See 42 U.S.C. 3604, 3605, 3606 and 3617.

In 1989, HUD promulgated fair housing regulations at 24 CFR part 100 that address discriminatory conduct in housing generally. The 1989 regulations include examples of discriminatory housing practices that cover quid pro quo sexual harassment and hostile environment harassment generally. Section 100.65(b)(5) identifies, as an example of unlawful conduct, denying or limiting housing-related services or facilities because a person refused to provide sexual favors. Section 100.400(c)(2) offers as an example of illegal conduct “. . . interfering with persons in their enjoyment of a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.” The 1989 regulations do not, however, expressly define quid pro quo or hostile environment harassment, specify standards for examining such claims, or provide illustrations of other types of quid pro quo or hostile environment harassment prohibited by the Act. The 1989 regulations also do not discuss liability standards for prohibited harassment or other discriminatory housing practices.

Over time, forms of harassment that violate civil rights laws have coalesced into two legal doctrines—quid pro quo and hostile environment. Although HUD and the courts have recognized that the Fair Housing Act prohibits harassment because of race or color,2 disability,3 religion,4 national origin,5 familial status,6 and sex,7 the doctrines of quid pro quo and hostile environment harassment are not well developed under the Fair Housing Act.

2See, e.g., Smith v. Mission Assoc. Ltd. P'ship, 225 F. Supp. 2d 1293, 1298-99 (D. Kan. 2002) (42 U.S.C. 3604(b)); HUD v. Tucker, 2002 ALJ LEXIS 33, *3-4 (HUD ALJ 2002) (42 U.S.C. 3604(a) and (b)).

3See, e.g., Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 (8th Cir. 2003) (42 U.S.C. 3604(f)(2)).

4See, e.g., Bloch v. Frischholz, 587 F. 3d 771, 787 (7th Cir. 2009) (42 U.S.C. 3604(b), 3617).

5See, e.g., Effendi v. Amber Fields Homeowners Assoc., 2011 U.S. Dist. Lexis 35265, *1 (N.D. Ill. 2011) (42 U.S.C. 3604(b) and 3617); Texas v. Crest Asset Mgmt., 85 F. Supp. 722, 736 (S.D. TX 2000) (42 U.S.C. 3604(a) and (b), 3617).

6See, e.g., Bischoff v. Brittain, 2014 U.S. Dist. LEXIS 145945, *13-14, *17 (E.D. Cal. 2014) (3604(b)); United States v. M. Westland Co., 1995 U.S. Dist. LEXIS 22466, *4 (C.D. Cal. 1995) (Fair Housing Act provision not specified).

7See, e.g., Quigley v. Winter, 598 F. 3d 938, 946 (8th Cir. 2010) (42 U.S.C. 804(b), 3617); Krueger v. Cuomo, 115 F. 3d 487, 491 (7th Cir. 1997) (42 U.S.C. 3604(b), 3617); Honce v. Vigil, 1 F. 3d 1085, 1088 (10th Cir. 1993) (42 U.S.C. 3604(b)); Shellhammer v. Lewallen, 770 F. 2d 167 (6th Cir. 1985) (sexual harassment under the Fair Housing Act in general).

As a result, when deciding harassment cases under the Fair Housing Act, courts have often looked to case law decided under Title VII, which prohibits employment discrimination because of race, color, religion, sex, and national origin.8 But the home and the workplace are significantly different environments such that strict reliance on Title VII case law is not always appropriate. One's home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one's home can be far more intrusive, violative and threatening than harassment in the more public environment of one's work place.9 Consistent with this reality, the Supreme Court has recognized that individuals have heightened expectations of privacy within the home.10

8See, e.g., Honce v. Vigil, 1 F. 3d at 1088; Shellhammer v. Lewallen, 770 F. 2d 167; Glover v. Jones, 522 F. Supp. 2d 496, 503 (W.D.N.Y. 2007); Beliveau v. Caras, 873 F. Supp. 1393, 1396 (C.D. Cal. 1995); see also Neudecker v. Boisclair Corp., 351 F. 3d at 364 (applying Title VII concepts to find hostile environment based on disability violated Act). Unlike Title VII, the Act also includes disability and familial status among its protected characteristics.

9See, e.g., Quigley v. Winter, 598 F. 3d at 947 (emphasizing that defendant's harassing conduct was made “even more egregious” by the fact that it occurred in plaintiff's home, “a place where [she] was entitled to feel safe and secure and need not flee.”); Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1292 (E.D. Cal. 2013) (“[c]ourts have recognized that harassment in one's own home is particularly egregious and is a factor that must be considered in determining the seriousness of the alleged harassment”); Williams v. Poretsky Management, 955 F. Supp. 490, 498 (D. Md. 1996) (noting sexual harassment in the home more severe than in workplace); Beliveau v. Caras, 873 F. Supp. at 1398 (describing home as place where one should be safe and not vulnerable to sexual harassment); D. Benjamin Barros, Home As a Legal Concept, 46 Santa Clara L. Rev. 255, 277-82 (2006) (discussing legal concept of home as source of security, liberty and privacy which justifies favored legal status in many circumstances); Nicole A. Forkenbrock Lindemyer, Article, Sexual Harassment on the Second Shift: The Misfit Application of Title VII Employment Standards to Title VIII Housing Cases, 18 Law & Ineq. 351, 368-80 (2000) (noting that transporting of Title VII workplace standards for sexual harassment into Fair Housing Act cases of residential sexual harassment ignores important distinctions between the two settings); Michelle Adams, Knowing Your Place: Theorizing Sexual Harassment at Home, 40 Ariz. L. Rev. 17, 21-28 (1998) (describing destabilizing effect of sexual harassment in the home).

10See, e.g. Frisby v. Schultz, 487 U.S. 474, 484 (1988) (“[w]e have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom”).

This rule therefore formalizes standards to address harassment in and around one's home and identifies some of the differences between harassment in the home and harassment in the workplace. While Title VII and Fair Housing Act case law contain many similar concepts, this regulation describes the appropriate analytical framework for harassment claims under the Fair Housing Act.

The rule addresses only quid pro quo and hostile environment harassment, and not conduct generically referred to as harassment that, for different reasons, may violate section 818 or other provisions of the Fair Housing Act. For example, a racially hostile statement by a housing provider could indicate a discriminatory preference in violation of section 804(c) of the Act, or it could evidence intent to deny housing or discriminate in the terms or conditions of housing in violation of sections 804(a) or 804(b), even if the statement does not create a hostile environment or establish a quid pro quo. Section 818, which makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of” rights protected by the Act, or on account of a person having aided others in exercising or enjoying rights protected by the Act, could be violated by conduct that creates a quid pro quo or hostile environment. It is not, however, limited to quid pro quo or hostile environment claims and could be violated by other conduct that constitutes retaliation or another form of coercion, intimidation, threats, or interference because of a protected characteristic. In sum, this rule provides standards that are uniformly applicable to claims of quid pro quo and hostile environment harassment under the Fair Housing Act, regardless of the section of the Act that is alleged to have been violated, and the same discriminatory conduct could violate more than one provision of the Act whether or not it also constitutes quid pro quo or hostile environment harassment.

III. Changes Made at the Final Rule Stage A. Overview of Changes Made at the Final Rule Stage

In response to public comment and upon further consideration by HUD of the issues presented in this rulemaking, HUD makes the following changes at this final rule stage:

• Re-words proposed § 100.7(a)(1)(iii) to avoid confusing the substantive obligation to comply with the Fair Housing Act with the standard of liability for discriminatory third-party conduct. Proposed § 100.7(a)(1)(iii) stated that a person is directly liable for “failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct. The duty to take prompt action to correct and end a discriminatory housing practice by a third-party derives from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowner's association, condominium or cooperative), or by federal, state or local law.” Section 100.7(a)(1)(iii) of this final rule provides that a person is directly liable for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct a discriminatory housing practice by a third-party depends upon the extent of control or any other legal responsibility the person may have with respect to the conduct of such third-party.”

• Adds to § 100.400 a new paragraph (c)(6) specifying as an example of a discriminatory housing practice retaliation because a person reported a discriminatory housing practice, including quid pro quo or hostile environment harassment.

• Adds to § 100.600(a)(2)(i), “Totality of the circumstances,” a new paragraph (C) that explains the reasonable person standard under which hostile environment harassment is assessed “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person's position.”

• Re-words proposed § 100.600(a)(2)(i)(B) to clarify that proof of hostile environment would not require demonstrating psychological or physical harm to avoid any confusion on that point. Proposed § 100.600(a)(2)(i)(B) stated “Evidence of psychological or physical harm is relevant in determining whether a hostile environment was created, as well as the amount of damages to which an aggrieved person may be entitled. Neither psychological nor physical harm, however, must be demonstrated to prove that a hostile environment exists.” Section 100.600(a)(2)(i)(B) in this final rule provides: “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.”

• Re-words proposed § 100.600(c) to clarify that a single incident may constitute either quid pro quo or hostile environment harassment if the incident meets the standard for either type of harassment under § 100.600(a)(1) or (a)(2). Proposed § 100.600(c) provided “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is severe, or evidences a quid pro quo.” Section 100.600(c) in this final rule provides “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.”

• Corrects the illustration in proposed § 100.65(b)(7) to fix a typographical error in the proposed rule. In the final rule, the word “service” is corrected and made plural.

IV. The Public Comments

On October 21, 2015, at 80 FR 63720, HUD published for public comment a proposed rule on Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act. The public comment period closed on December 21, 2015. HUD received 63 comments. The comments were submitted by public housing agencies (PHAs) and other government agencies; private housing providers and their representatives; nonprofit organizations, including fair housing, civil rights, housing advocacy, and legal groups; tenants and other individuals. This section of the preamble addresses significant issues raised in the public comments and provides HUD's responses. All public comments can be viewed at: http://www.regulations.gov/#!docketDetail;D=HUD-2015-0095.

The majority of the commenters were generally supportive of the rule, with some urging HUD to publish the rule quickly. This summary does not provide responses to comments that expressed support for the proposed rule without suggesting any modifications to the rule. General supportive comments included statements of the importance of the rule in addressing and preventing sexual assault of tenants by landlords and descriptions of how the rule would empower housing providers, renters, and other consumers to understand and avoid illegal housing practices by defining and illustrating quid pro quo and hostile environment harassment. Some commenters stated that this rule may help providers focus on the importance of eliminating harassment on their properties, and some commenters identified provisions of the rule that would provide useful guidance to housing providers, tenants, residents, and others involved in housing transactions.

More specifically, commenters expressed appreciation that the rule would apply not solely to sexual harassment but to harassment because of all protected characteristics, with some commenters sharing anecdotes of harassment based on a variety of protected characteristics that they believe the rule may help remedy. Other commenters supported the proposed rule's distinction between the Fair Housing Act and Title VII, with commenters endorsing the Department's proposal not to adopt the Title VII affirmative defense to an employer's vicarious liability.

A number of commenters assessed the rule to be in accord with case law, and approved of the balance the rule strikes between the rights and obligations of the parties in a fair housing matter. Some commenters noted that the proposed standard for determining whether conduct constitutes a hostile environment is appropriately individualized to the facts of each case. Some commenters specifically identified the benefits provided by the rule in establishing a uniform framework for fairly evaluating and appropriately responding to alleged harassment, which minimizes the subjective nature of adjudicating such claims. Other commenters expressed appreciation for the proposed rule's recognition that a single incident may establish hostile environment harassment. Some commenters expressed support for the rule's acknowledgement of the fear of retaliation many individuals with disabilities experience when trying to address issues of harassment in their housing.

Many commenters stated that the rule's description of traditional principles of agency liability is accurate and not an expansion of existing liability. Some commenters expressed appreciation that the rule would incorporate traditional liability principles for any type of discriminatory housing practice, not just harassment, and would rely on negligence principles and distinguish between direct and vicarious liability. Other commenters stated that the rule would not burden housing providers because the direct liability standard is aligned with established housing provider business practice. Some commenters expressed appreciation that the rule would place landlords on notice that they should take corrective action early on, once they know or should have known of the discrimination.

Several commenters stated that housing providers are already in possession of the tools they need to create living environments free from harassment. In particular, the commenters stated that housing providers are familiar with the corrective actions they may take in order to enforce their own rules. Another commenter stated that housing providers are in the best position to select, train, oversee, and assure the correct behavior of their agents, noting that effective enforcement of the rule depends on the potential for liability on the part of housing providers.

Some commenters expressed support for the proposed rule while seeking modifications at the final rule stage. For example, a commenter encouraged broad application of the rule so that intervention and corrective action would occur before victims of housing discrimination are forced out of their homes. Another commenter sought an expansive reading of the rule in order to prevent all forms of bullying. Some commenters sought to add factors to the totality of circumstances consideration, while other commenters sought to add to the classes protected by the rule.

Following are HUD's responses to commenters' suggested modifications to the rule and the other significant issues raised in the public comments.

A. Quid Pro Quo and Hostile Environment Harassment: § 100.600 a. General: § 100.600(a)

Issue: A commenter requested that HUD add seniors as a protected class under the rule. Other commenters stated that elderly persons often have disabilities, which make them particularly vulnerable to harassment. These commenters requested that the final rule make clear that the rule protects elderly persons from harassment because of disability.

HUD Response: HUD shares the commenters' concern for elderly persons but does not have the authority to add a new protected class to the Fair Housing Act and therefore is unable to adopt the commenters' recommendation to expand the scope of the rule in this way. Neither age nor senior status is a protected characteristic under the Act, although persons who are discriminated against because of their disabilities are protected under the Act without regard to their age. Therefore, elderly individuals who are subjected to quid pro quo or hostile environment harassment on the basis of disability or another protected characteristic are protected under the Act and this final rule.

Issue: A commenter suggested that HUD include a clause in the final rule to protect whistleblowers who experience harassment for reporting quid pro quo or hostile environment harassment. The commenter reported having witnessed such harassment and explained that whistleblowers are particularly vulnerable to quid pro quo and hostile environment harassment, but because they are not harassed on the basis of their race, color, religion, national origin, sex, familial status, or disability, they are not directly protected by the proposed regulation.

HUD Response: Anyone who is harassed for reporting discriminatory harassment in housing is protected by the Fair Housing Act. Section 818 of the Act makes it unlawful to coerce, intimidate, threaten, or interfere with a person on account of his or her having aided or encouraged another person in the exercise or enjoyment of any right granted or protected by sections 803-806 of the Act. To highlight the essential role whistleblower protection plays in ensuring fair housing, HUD is adding to § 100.400 a new paragraph (c)(6), which provides the following example of a discriminatory housing practice “Retaliating against any person because that person reported a discriminatory housing practice to a housing provider or other authority.”

Issue: Several commenters urged HUD to state in the final rule that harassment against persons who are lesbian, gay, bisexual, or transgender (LGBT), or because of pregnancy, violates the Fair Housing Act. They asked HUD to define harassment because of sex to include harassment based on sexual orientation, gender identity, sex stereotyping, or pregnancy. The commenters referenced studies about the pervasive harassment and discrimination such persons face in housing. They also noted that a number of federal courts and federal agencies have interpreted Title VII and other laws prohibiting discrimination because of sex to include discrimination on the basis of gender identity, gender transition, or transgender status. The commenters also pointed to HUD's “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” rule, which provides that persons may not be denied access to HUD programs because of sexual orientation or gender identity.

HUD Response: The Fair Housing Act already expressly prohibits discrimination based on pregnancy as part of its prohibition of discrimination because of familial status (42 U.S.C. 3602(k)), and HUD's Equal Access Rule applies only to HUD programs.

HUD agrees with the commenters' view that the Fair Housing Act's prohibition on sex discrimination prohibits discrimination because of gender identity. In Price Waterhouse v. Hopkins, the Supreme Court interpreted Title VII's prohibition of sex discrimination to encompass discrimination based on non-conformance with sex stereotypes, stating that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 11 Taking note of Price Waterhouse and its progeny, in 2010, HUD issued a memorandum recognizing that sex discrimination prohibited by the Fair Housing Act includes discrimination because of gender identity. In 2012, the Equal Employment Opportunity Commission (EEOC) reached the same conclusion, “clarifying that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.” 12 Following the EEOC's decision, the Attorney General also concluded that:

11 490 U.S. 228, 251 (1989).

12Macy v. Dept. of Justice, No. 0120120821, 2012 EEOPUB LEXIS 1181, *13 (EEOC Apr. 20, 2012); see also Lusardi v. Dept. of the Army, No. 0120133395, 2015 EEOPUB LEXIS 896, *17 (EEOC Apr. 1, 2015).

the best reading of Title VII's prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination “because of . . . sex” includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.13

13 Attorney General Memorandum, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014), posted at http://www.justice.gov/file/188671/download. Similarly, the Office of Personnel Management revised its nondiscrimination regulations to make clear that sex discrimination under Title VII includes discrimination based on gender identity. See 5 CFR 300.102-300.103; see also OFCCP Directive 2014-02, Gender Identity and Sex Discrimination (Aug. 19, 2014) (stating that discrimination based on gender identity or transgender status is discrimination based on sex), posted at http://www.dol.gov/ofccp/regs/compliance/directives/Directive_2014-02_508c.pdf.

HUD reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person's gender identity is indistinguishable from harassment because of sex.14

14See Glenn v. Brumby, 663 F.3d at 1317 (“discrimination against a transgender individual because of her gender nonconformity is sex discrimination, whether it is described as being on the basis of sex or gender.”); see also Finkle v. Howard Cnty, 12 F. Supp. 3d 780, 788 (D. Md. 2014) (holding that “Plaintiff's claim that she was discriminated against `because of her obvious transgender[] status is a cognizable claim of sex discrimination under Title VII”); Rumble v. Fairview Health Services, No. 14-cv-2037, 2015 U.S. Dist. LEXIS 31591, *4-5 (D. Minn. Mar. 16, 2015) (in Affordable Care Act case, holding that “[b]ecause the term `transgender' describes people whose gender expression differs from their assigned sex at birth, discrimination based on an individual's transgender status constitutes discrimination based on gender stereotyping. Therefore, Plaintiff's transgender status is necessarily part of his `sex' or `gender' identity”).

HUD, in its 2010 memorandum, also advised that claims of housing discrimination because of sexual orientation can be investigated under the Price Waterhouse sex-stereotyping theory. Over the past two decades, an increasing number of Federal courts, building on the Price Waterhouse rationale, have found protections under Title VII for those asserting discrimination claims related to their sexual orientation.15 Many Federal-sector EEOC decisions have found the same.16 Although some Federal appellate courts have declined to find sex discrimination under Title VII based on the sole fact of the person's sexual orientation, those courts nonetheless recognized the Price Waterhouse sex-stereotyping theory may be used to find discrimination based on sex.17 These Title VII legal authorities are consistent with HUD's 2010 memorandum, in which HUD interprets the Fair Housing Act's prohibition on sex discrimination to include, at a minimum, discrimination related to an individual's sexual orientation where the evidence establishes that the discrimination is based on sex stereotypes. HUD's interpretation of sex discrimination under the Fair Housing Act is also consistent with the Department of Health and Human Services' rule interpreting sex discrimination under Section 1557 the Affordable Care Act 18 and the Department of Labor's rule interpreting sex discrimination under Title VII of the Civil Rights Act of 1964.19

15See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291-92 (3rd Cir. 2009) (harassment of a plaintiff because of his “effeminate traits” and behaviors could constitute sufficient evidence that he “was harassed because he did not conform to [the employer's] vision of how a man should look, speak, and act—rather than harassment based solely on his sexual orientation”); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (coworkers' and supervisors' harassment of a gay male because he did not conform to gender norms created a hostile work environment in violation of Title VII); Hall v. BNSF Ry. Co., No. C13-2160 RSM, 2014 U.S. Dist. LEXIS 132878 *8-9 (W.D. Wash. September 22, 2014) (plaintiff's allegation that “he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males” stated a sex discrimination claim under Title VII); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (Title VII claim based on sex stated when plaintiff's “orientation as homosexual” removed him from the employer's preconceived definition of male); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”). Cf. Videckis v. Pepperdine Univ., 2015 U.S. Dist. LEXIS 167672, *16 (C.D. Cal. 2015) (“It is impossible to categorically separate `sexual orientation discrimination' from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender.”).

16Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080, slip op. at 9-11 (July 16, 2015); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120110576, slip op. at 1 (Aug. 20, 2014) (“While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination” and “sex discrimination claims may intersect with claims of sexual orientation discrimination.”); Couch v. Dep't of Energy, EEOC Appeal No. 0120131136, slip op. at 1 (Aug. 13, 2013) (finding harassment claim based on perceived sexual orientation is a discrimination claim based on failure to conform to gender stereotypes); Culp v. Dep't of Homeland Sec., EEOC Appeal 0720130012, slip op. at 1 (May 7, 2013) (Title VII covers discrimination based on associating with lesbian colleague); Castello v. U.S. Postal Serv., EEOC Appeal No. 0520110649, slip op. at 1 (Dec. 20, 2011) (vacating prior decision and holding that complainant stated claim of discrimination based on sex-stereotyping through evidence of offensive comments by manager about female subordinate's relationships with women); Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873, slip op. at 1 (July 1, 2011) (court found that “Complainant has alleged a plausible sex-stereotyping” claim of harassment because he married a man).

17See, e.g., Gilbert v. Country Music Ass'n, 432 F. App'x 516, 520 (6th Cir. 2011) (acknowledging the validity of a sex-stereotyping claim “based on gender non-conforming `behavior observed at work or affecting . . . job performance,' such as . . . `appearance or mannerisms on the job,' ” but rejecting the plaintiff's sex discrimination claim because his “allegations involve discrimination based on sexual orientation, nothing more. He does not make a single allegation that anyone discriminated against him based on his `appearance or mannerisms' or for his `gender non-conformity.' ”) (quoting Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006); Pagan v. Gonzalez, 430 F. App'x 170, 171-72 (3d Cir. 2011) (recognizing that “discrimination based on a failure to conform to gender stereotypes is cognizable” but affirming dismissal of the plaintiff's sex discrimination claim based on “the absence of any evidence to show that the discrimination was based on Pagan's acting in a masculine manner”); Dawson v. Bumble & Bumble, 398 F.3d 211, 221, 222-23 (2d Cir. 2005) (observing that “one can fail to conform to gender stereotypes in two ways: (1) Through behavior or (2) through appearance, but dismissing the plaintiff's sex discrimination claim because she “has produced no substantial evidence from which we may plausibly infer that her alleged failure to conform her appearance to feminine stereotypes resulted in her suffering any adverse employment action”). See also Hively v. Ivy Tech Community College, 2016 U.S. App. LEXIS 13746, *16-25 (7th Cir. 2016) (reviewing this line of cases).

18 Nondiscrimination in Health Programs and Activities, 81 FR 31376, 31388-90 (May 18, 2016) (to be codified at 45 CFR part 92).

19 Discrimination Because of Sex, 81 FR 39108, 39137-40 (June 15, 2016) (to be codified at 41 CFR part 60-20).

Issue: Some commenters asked HUD to provide a definition of harassment. A commenter noted that the proposed rule defines two types of harassment—quid pro quo and hostile environment, but does not define the general term “harassment.” Another commenter stated that if HUD believes that other types of harassment may also violate the Fair Housing Act, HUD should provide a definition of harassment. Other commenters strongly supported the rule's definitions of quid pro quo and hostile environment harassment, describing them as clear and inclusive, and stated that the definitions and related examples provided in the rule clarify what conduct the Fair Housing Act prohibits and will aid all stakeholders' understanding of the rule's provisions.

HUD Response: The term harassment has broad colloquial usage with no defined parameters. For this reason, the final rule defines the specific terms “quid pro quo” and “hostile environment harassment.” Other conduct that might generically be referred to as harassment might fall in the categories of quid pro quo or hostile environment, or the conduct may constitute a different type of discriminatory housing practice in violation of section 818 of the Act or other provisions of the Act, or the conduct may not violate the Act at all. As the preamble to the proposed rule explained, a violation of section 818 may be established using the standards for quid pro quo or hostile environment harassment or by the specific elements of a section 818 violation, i.e., (1) the plaintiff or complainant exercised or enjoyed—or aided or encouraged another person in the exercise or enjoyment of—a right guaranteed by sections 803-06; (2) the defendant's or respondent's conduct constituted coercion, intimidation, a threat, or interference; and (3) a causal connection existed between the exercise, enjoyment, aid or encouragement of the right and the defendant's or respondent's conduct.

Issue: Some commenters expressed concern that the proposed rule did not expressly state that sections 804(b) and 818 of the Fair Housing Act apply to discrimination that occurs after the complainant or plaintiff acquires the dwelling. The commenters stated that some courts have held that these provisions apply only to discrimination that affects access to housing and urged HUD to add language to the rule making clear that these particular provisions apply to post-acquisition discrimination claims.

HUD Response: HUD believes that the definitions of “quid pro quo” and “hostile environment harassment” make clear HUD's view that the Act covers post-acquisition conduct and therefore no additional language is required. These definitions mirror the coverage of sections 804(b), 804(f)(2), and 818 of the Fair Housing Act, which plainly apply to both pre-acquisition and post-acquisition discrimination claims. Moreover, HUD has long interpreted and enforced these provisions of the Act and others to protect against discrimination that occurs before one acquires a dwelling as well as while one is living in the dwelling. HUD's 1989 regulations interpreting sections 804(b), 804(f)(2), and 818 of the Act, for example, provide that discrimination prohibited under these provisions includes the “maintenance or repairs of sale or rental dwellings,” “[d]enying or limiting the use of privileges, services, or facilities associated with a dwelling,” and threatening, intimidating or interfering with persons “in their enjoyment of a dwelling.” The inclusion of language covering the maintenance of housing, the continued use of privileges, services, or facilities associated with housing, and the “exercise or enjoyment” of housing indicates circumstances in which residents—as opposed to just applicants—benefit from the Act's protections throughout their residency.

Sections 100.65(b)(6)-(7) of the proposed and of the final rule further illustrate some ways in which a person may violate sections 804(b), 804(f)(2), and 818 of the Fair Housing Act: “conditioning the terms, conditions, or privileges relating to the sale or rental of a dwelling, or denying or limiting the services or facilities in connection therewith, on a person's response to harassment because of [a protected characteristic]; “subjecting a person to harassment because of [a protected characteristic] that has the effect of imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting services or facilities in connection with the sale or rental of a dwelling.” In sum, the Act and HUD's regulations, including this final rule, make clear that the Act prohibits discrimination that occurs while a person resides in a dwelling, and courts have repeatedly interpreted the Act similarly.20

20See, e.g., Bloch v. Frischholz, 587 F.3d at779-81 (ruling that post-sale conduct by a homeowner's association could violate section 804(b) of the Act and allowing section 3604(b) claims to address post-acquisition conduct was consistent with HUD's regulations (citing 24 CFR 100.65(b)(4))); Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 713 (9th Cir. 2009) (concluding that the Act covers post-acquisition discrimination); Neudecker v. Boisclair Corp., 351 F.3d at 364 (finding plaintiff's post-acquisition harassment claim valid under the Act); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996) (recognizing claim for sexual harassment hostile housing environment under the Act); Honce v. Vigil, 1 F.3d at 1089-90 (recognizing that the Act prohibits both quid pro quo and hostile housing environment sexual harassment); Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) (finding that a landlord's discriminatory conduct against current tenants violated section 3604(b) of the Act); Richards v. Bono, No. 5:04CV484-OC-10GRJ, 2005 WL 1065141, at *3 (M.D. Fla. May 2, 2005) (“[b]ecause the plain meaning of `rental' contemplates an ongoing relationship, the use of that term in § 3604(b) means that the statute prohibits discrimination at any time during the landlord/tenant relationship, including after the tenant takes possession of the property”); United States v. Koch, 352 F. Supp. 2d 970, 976 (D. Neb. 2004) (“[I]t is difficult to imagine a privilege that flows more naturally from the purchase or rental of a dwelling than the privilege of residing therein.”); U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, Questions and Answers on Sexual Harassment under the Fair Housing Act (2008), available at http://portal.hud.gov/hudportal/documents/huddoc?id=QAndASexualHarassment.pdf (recognizing that current tenants may file fair housing complaints under the Act); Robert G. Schwemm, Fair Housing Litigation After Inclusive Communities: What's New and What's Not, 115 Colum. L. Rev. Sidebar 106, 122-23 (2015) (explaining that many post-acquisition actions, such as evictions and harassment, may give rise to violations under sections 804(a) and 804(b) of the Act).

Issue: Some commenters asked HUD to clarify how to distinguish potentially actionable harassment under the Fair Housing Act from protected speech under the First Amendment. A commenter said that it is not clear how conduct that allegedly constitutes harassment under the rule may be distinguished from other speech or conduct that is constitutionally protected or so trivial so as not to qualify as harassment in the first place. Another commenter said that courts have consistently held that the First Amendment protects a tenant who publicly speaks about a neighbor, even if that conduct is motivated by discriminatory intent. Another commenter asked whether the proposed rule would implicate constitutional protections of free speech or free exercise of religion if the housing provider evicts a tenant where, for example, two tenants are having heated religious arguments about the other's choice of religious attire. Another commenter stated that the proposed rule properly balanced the competing rights at issue and did not interfere with constitutionally protected speech because the rule would not encompass speech that is merely offensive or that causes nothing more than hurt feelings.

HUD Response: As discussed elsewhere in this preamble, not every dispute between neighbors is a violation of the Fair Housing Act. Moreover, speech that is protected by the First Amendment is not within the Act's prohibitions. First Amendment protections do not extend to certain acts of coercion, intimidation, or threats of bodily harm proscribed by section 818 of the Act. As the Supreme Court has stated, “true threats” have no First Amendment protection.21 In Notice FHEO-2015-01, HUD has set out substantive and procedural guidelines regarding the filing and investigation of Fair Housing Act complaints that may implicate the First Amendment.22 The Notice discusses how HUD handles complaints against persons who are not otherwise covered by the Act, but who are alleged to have violated Section 818 of the Act.

21See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).

22 Notice FHEO 2015-01 found at: http://portal.hud.gov/hudportal/documents/huddoc?id=5-26-2015notice.pdf.

Issue: A commenter suggested that the rule is unnecessary because other administrative and legal remedies already exist for victims of harassment under state and local law. Another commenter suggested that the rule is unnecessary because HUD has already charged cases involving harassment under the Act.

HUD Response: This final rule formalizes and provides uniform standards for evaluating complaints of quid pro quo and hostile environment harassment under the Fair Housing Act. While other administrative and legal causes of action may exist for victims of quid pro quo and hostile environment harassment under landlord-tenant law, tort law, or other state law, they do not substitute for the protections against discrimination and the remedies provided under the Act. Moreover, the fact that HUD has previously issued charges of discrimination involving quid pro quo or hostile environment harassment does not negate the need for this rule.

Issue: A commenter asked HUD to abandon the rulemaking process and instead provide specific, clear guidance to the regulated community so that housing providers can ascertain the types of behavior that do and do not constitute harassment under the Fair Housing Act. Other commenters requested that HUD provide technical assistance on various aspects of the rule to residents, housing providers, and practitioners to ensure all parties know their rights under the law.

HUD Response: HUD declines to abandon this rulemaking. This regulation is needed to formalize standards for assessing claims of harassment under the Fair Housing Act and to clarify when housing providers and others covered by the Act may be liable for illegal harassment or other discriminatory housing practices. It has been HUD's experience that there is significant misunderstanding among public and private housing providers about the circumstances under which they may be liable. This regulation provides greater clarity in making that assessment. HUD will continue to offer guidance and training on the Fair Housing Act generally and on this final rule, as needed.

Issue: A commenter recommended that the rule expand the limits for damages in cases that establish sexual harassment in housing.

HUD Response: HUD declines to make this change because it is unnecessary. The Act contains no limit on damages that may be awarded, specifically authorizing an award of “actual damages.” 42 U.S.C. 3612(g)(3); 3613(c)(1); 3614(d)(1)(B).

Issue: A commenter asked HUD to consider expanding the time for filing sexual harassment complaints where a hostile environment case includes subsequent harassment that occurs many months after the initial act of sexual harassment.

HUD Response: HUD declines to adopt this recommendation because the Fair Housing Act specifically defines the statute of limitations for filing complaints. It is one year after an alleged discriminatory housing practice occurred or terminated for a complaint with HUD and two years after an alleged discriminatory housing practice occurred or terminated for a civil action in federal district court or state court. See 42 U.S.C. 3610; 3613. If a violation is continuing, the limitations period runs from the date of the last occurrence or termination of the discriminatory act.23

23See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982); Neudecker v. Boisclair Corp., 351 F.3d at 363 ; Spann v. Colonial Vill., Inc., 899 F.2d 24, 34-35 (D.C. Cir. 1990); Heights Cmty Congress v. Hilltop Realty, Inc., 774 F.2d 135, 139-41 (6th Cir. 1985).

1. Quid Pro Quo Harassment: § 100.600(a)(1)

Issue: A commenter asked how the rule would “differentiate between a situation of involuntary quid pro quo that genuinely must be governed by the Act and a situation where one party is manipulating the rule following a mutually beneficial and agreed upon transaction.”

HUD Response: The rule's definition of quid pro quo harassment requires a request or demand that is “unwelcome.” A mutually beneficial and agreed upon transaction is not unwelcome and would not constitute quid pro quo harassment under the rule or the Act. It is important to note, however, that, as the rule states, if an individual acquiesces to an unwelcome request or demand, unlawful quid pro quo harassment may have occurred. Moreover, if a housing provider regularly or routinely confers housing benefits based upon the granting of sexual favors, such conduct may constitute quid pro quo harassment or hostile environment harassment against others who do not welcome such conduct, regardless of whether any objectionable conduct is directed at them and regardless of whether the individuals who received favorable treatment willingly granted the sexual favors.24 Liability in all situations involving allegations of harassment must be determined on a case-by-case basis.

24  Cf. EEOC Policy Guidance No. N-915.048, Employer Liability under Title VII for Sexual Favoritism (Jan. 12, 1990) (providing that widespread sexual favoritism based upon solicitations for and/or the granting of sexual favors or other sexual conduct “can form the basis of an implicit `quid pro quo' harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive”).

Issue: A commenter stated that the preamble to the proposed rule was vague in stating that “a person is aggrieved if that person is denied or delayed in receiving a housing-related opportunity or benefit because another received the benefit.” The commenter was concerned that this statement would require a PHA to identify, investigate, and document a defense to any tenant-perceived delay in receiving benefits.

HUD Response: The quoted phrase is not vague when read in context, which explains the meaning of quid pro quo harassment under the Fair Housing Act. The phrase refers to a person who is aggrieved because he or she is denied a benefit that went to another in exchange for sexual favors, for example. Aggrieved persons under the Act and HUD's regulation are limited to those who were injured (or are about to be injured) by a discriminatory housing practice as defined in the Act. Neither the Fair Housing Act nor this final rule prohibits delays in receiving housing-related opportunities or benefits for nondiscriminatory reasons. If, however, an applicant or tenant alleges that he or she has been denied or delayed in receiving a benefit because others submitted to requests for sexual favors, the PHA should investigate to determine if quid pro quo or hostile environment harassment has occurred.

2. Hostile Environment Harassment: § 100.600(a)(2)

Issue: Several commenters recommended that HUD ensure consistency of the discussion of hostile environment harassment throughout the preamble in order to prevent any unintentional barriers for harassment victims seeking to bring claims under the Fair Housing Act. The commenters specifically stated that in one section of the preamble to the proposed rule, HUD defines “hostile environment harassment” to require unwelcome conduct because of a protected characteristic that “unreasonably interferes” with the use and enjoyment of a dwelling, or with the exercise of other rights protected by the Act. By contrast, the commenters stated, other sections of the preamble rightly omit the “unreasonably” qualifier when discussing hostile environment harassment. The commenters requested that the word “unreasonably” be removed from the discussion in the preamble because it is unnecessary and will create confusion. They stated that unwelcome conduct that is “sufficiently severe or pervasive” as to interfere with one's enjoyment of rights protected under the Act is in itself unreasonable.

HUD Response: The term “unreasonably” does not appear in the definition of “hostile environment harassment” in the regulatory text of the proposed rule. The term “unreasonably” was used in the preamble to the proposed rule to convey how a claim of hostile environment would be evaluated; that is, from the perspective of a reasonable person in the aggrieved person's position. HUD agrees that the use of the term “unreasonably” in the preamble may have caused confusion by conflating the substantive standard with the method of proof. In this final rule, as was the case in the proposed rule, the definition of “hostile environment harassment” in § 100.600(a)(2) is not phrased as requiring proof that unwelcome conduct “unreasonably” interfere with a right protected by the Fair Housing Act. But it remains that whether unwelcome conduct is sufficiently severe or pervasive as to interfere with rights protected by the Act, and therefore constitute hostile environment harassment, is evaluated from the perspective of a reasonable person in the aggrieved person's position.

Issue: A commenter suggested that HUD include definitions and descriptions of “bullying” in this final rule because bullying is very similar to hostile environment harassment.

HUD Response: HUD does not agree that it is necessary to add the word “bullying” to the final rule in order to cover conduct that could be considered bullying. Section 100.600(a)(2) of the proposed rule and of this final rule, which defines hostile environment harassment and specifies the factors to be considered when evaluating whether particular conduct creates a hostile environment in violation of the Act, is broadly worded and fully captures the concept of bullying because of a protected characteristic that the commenter seeks to include.

Issue: A commenter said HUD should include social isolation and neglect as forms of harassment under the rule, especially when they occur with the intent to drive a person from his or her home or interfere with his or her enjoyment of a dwelling. According to the commenter, these actions have major implications for the psychological well-being of an individual.

HUD Response: HUD appreciates that social isolation and neglect are serious concerns. This rule is limited to conduct engaged in because of a protected characteristic. If a tenant is subjected to unwanted severe or pervasive conduct because of a disability, for example, which leads to social isolation with the intent or effect of driving the tenant from his or her home or interfering with his or her enjoyment of a dwelling, such conduct could constitute hostile environment harassment under the standards set forth in the rule.

Issue: A commenter said the rule could more clearly distinguish harassment from inappropriate behavior or disputes that do not rise to the level of harassment. Other commenters stated that they appreciated the rule's emphasis on the totality of the circumstances, which will ensure that mere disagreements, mistaken remarks, or isolated words spoken in the heat of the moment will not result in liability unless the totality of the circumstances establishes hostile environment harassment.

HUD Response: HUD agrees that not every disagreement between persons involved in a housing transaction constitutes unlawful harassment because of a protected characteristic in violation of the Act and believes the rule appropriately captures the distinction. Section 100.600(a)(2) of the proposed rule and of this final rule defining hostile environment harassment requires that the unwelcome conduct be “sufficiently severe or pervasive” as to interfere with defined features of the housing transaction: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms or conditions of a residential real estate-related transaction.

Issue: A commenter recommended that the final rule recognize the role of preferential treatment for services and living arrangements, except when provided because of disability, as a type of discrimination. The commenter said that preferential treatment is a means through which to encourage and reward secondary actors for their role in creating a hostile environment, and the rule should recognize it as such. The commenter also recommended that HUD request and make available data regarding repairs or upgrades so any non-monetary favor in exchange for harassment, by an agent not directly employed by the management or owner, may be determined.

HUD Response: HUD declines to adopt the commenter's suggestions because the rule as currently proposed already accommodates the commenter's concerns. Providing preferential treatment that creates a hostile environment because of race, color, religion, sex, familial status, or national origin already violates the Fair Housing Act under the standards proposed in the rule. Moreover, HUD's regulations already contain illustrations as to this type of violation. Therefore, additional language regarding preferential treatment is not needed. In addition, processes for requesting and making available data regarding repairs or upgrades are outside the scope of this rule. HUD notes that in investigations, it requests data regarding repairs or upgrades as appropriate to determine whether a violation of the Fair Housing Act has occurred.

Issue: Two commenters asked whether the rule would apply to situations in which residential property managers or other employees of a housing provider are harassed by the housing provider's tenants. One of the commenters explained that she was a resident of the building she managed, that she had a disability, and that she had suffered harassment and threats by other residents.

HUD Response: The proposed standards generally would not apply to situations in which a property manager or other housing provider employee is harassed by the housing provider's tenants because such situations ordinarily do not involve a housing-related transaction covered by the Act. Where, however, a property manager is also a resident of the building that the property manager manages (e.g., a resident-manager), the property manager is entitled to the same protection from discriminatory harassment under the Act and under this final rule as any other resident. Additionally, Section 818 of the Act makes it unlawful to coerce, intimidate, threaten, or interfere with any person on account of the person having assisted others in enjoying or exercising their fair housing rights. Therefore, to the extent that a property manager or other housing provider employee (whether a resident or not) is subjected to coercion, intimidation, threats, or interference because he or she aided or encouraged other people in exercising or enjoying a right protected by the Act—e.g., by receiving and responding to one tenant's complaint of discriminatory harassment by another tenant—the manager or employee may be entitled to protection under the Act.25

25 A property manager may also be protected by Title VII, whether or not he or she resides at the housing.

i. Totality of the Circumstances: § 100.600(a)(2)(i)

Issue: Some commenters requested that HUD clarify the definition of “totality of the circumstances” in § 100.600(a)(2)(i) because, in the commenters' view, the proposed rule does not sufficiently explain the showing required to prove hostile environment harassment in violation of the Fair Housing Act. Other commenters supported HUD's standard for determining whether conduct constitutes a hostile environment, stating that the standard and its factors are clear and permit an appropriately individualized assessment of the facts of each case. These commenters stated that the rule's explanation of hostile environment harassment provides meaningful guidance to both housing providers and potential claimants.

HUD Response: HUD believes the “totality of the circumstances” standard in this final rule provides an appropriate standard for assessing claims of hostile environment harassment, while also providing courts with the flexibility to consider the numerous and varied factual circumstances that may be relevant when assessing a specific claim. HUD therefore chooses not to alter the definition of the term “totality of the circumstances,” although it will add to the final rule the standard by which the evidence is to be evaluated, which is from the perspective of a reasonable person in the aggrieved person's position. Section 100.600(a)(2) defines what constitutes hostile environment harassment under the Act. In accordance with this provision, establishing a hostile environment harassment violation requires proving that: A person was subjected to unwelcome spoken, written, or physical conduct; the conduct was because of a protected characteristic; and the conduct was, considering the totality of the circumstances, sufficiently severe or pervasive as to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. Whether a hostile environment harassment violation has occurred is a fact-specific inquiry, and the rule supplies a non-exhaustive list of factors that must be considered in making that determination. It would be impossible to quantify in the rule the amount of evidence necessary to make such a showing in every case involving a claim of hostile environment harassment. The additional instruction in the rule text, and not just the preamble, that the “totality of the circumstances” is to be evaluated from the perspective of a reasonable person in the aggrieved person's position will aid all parties in assessing whether a “hostile environment” has been created.

Issue: HUD received several comments regarding the explanation in the preamble to the proposed rule that hostile environment harassment should be assessed from the perspective of a reasonable person in the aggrieved person's position. A commenter expressed concern that this standard is too subjective, stating that one reasonable person's measure may be different from another reasonable person's measure. Another commenter asked HUD to provide a definition of the term “reasonable person.” Other commenters approved of the standard articulated in the preamble to the proposed rule and commended HUD for recognizing that the reasonable person standard must take into account the circumstances of the aggrieved person. A commenter recommended that the rule text itself explicitly state this objective standard. Another commenter, however, recommended that HUD not add the standard to the rule text itself because such addition may invite courts to second-guess the rationality and behavior of the actual victim, rather than focusing on the conduct and its surrounding circumstances.

HUD Response: As HUD explained in the preamble to the proposed rule, whether unwelcome conduct is sufficiently severe or pervasive to create a hostile housing environment is evaluated from the perspective of a reasonable person in the aggrieved person's position. This standard is an objective one, but ensures that an assessment of the totality of the circumstances includes consideration of whether persons of the same protected class and of like personal experience as the plaintiff or complainant would find the challenged conduct to create a hostile environment. At the proposed rule stage, HUD chose not to add the “reasonable person in the aggrieved person's position” standard to the text of the rule itself. But in light of the confusion expressed by some of the commenters, HUD has added this standard to the text of the final rule discussing the totality of the circumstances standard. In adding this reasonable person standard for assessing the evidence to the rule text, HUD does not intend to create an additional requirement for proving a hostile environment harassment claim beyond the showing required under § 100.600(a)(2) of the rule. The definition of hostile environment harassment in this final rule remains unchanged and focuses on defining the types of conduct that may establish a claim of hostile environment harassment under the Fair Housing Act.

(A) Factors To Be Considered: § 100.600(a)(2)(i)(A)

Issue: Several commenters commended HUD's explanation in the preamble to the proposed rule that individuals have heightened rights within their home for privacy and freedom from unwelcome speech and conduct. Many commenters agreed with HUD that harassment in or around one's home can be far more intrusive, violative, and threatening than harassment in the more public environment of one's workplace. Some commenters said these considerations should be explicitly incorporated into the text of the rule itself. Commenters specifically requested that HUD revise proposed § 100.600(a)(2)(i)(A) by adding as a factor to be considered in determining whether hostile environment harassment exists “the heightened rights in or around one's home for privacy and freedom from harassment” or “the heightened reasonable expectation of privacy and freedom from harassment in one's home.” Another commenter said that § 100.600(a)(2)(i)(A) should expressly state that conduct occurring in one's home may result in a violation of the Fair Housing Act even though the same conduct in one's place of employment may not violate Title VII.

HUD Response: HUD declines to add language regarding individuals' heightened rights within the home for privacy and freedom from unwelcome speech and conduct to the rule text in § 100.600(a)(2)(i)(A). The non-exhaustive list of factors included in § 100.600(a)(2)(i)(A) identifies circumstances that can be demonstrated with evidence during the adjudication of a claim of hostile environment harassment under the Act. Evidence regarding the “location of the conduct,” as explicitly identified in § 100.600(a)(2)(i)(A), is a critical factor for consideration and will allow courts to take into account the heightened privacy and other rights that exist within the home when determining whether hostile environment harassment occurred. For similar reasons, HUD also declines to add language stating that harassing conduct may result in a violation of the Fair Housing Act even though such conduct might not violate Title VII. HUD believes that by establishing a hostile environment harassment standard tailored to the specific rights protected by the Fair Housing Act and by directing that hostile environment claims under the Act are to be evaluated by assessing the totality of the circumstances—including the location of the unwelcome conduct and the context in which it occurred—the final rule ensures that courts consider factors unique to the housing context when making the fact-specific determination of whether the particular conduct at issue violates the Act. Therefore, while HUD agrees that unwelcome conduct in or around the home can be particularly intrusive and threatening and may violate the Fair Housing Act even though the same or similar conduct in an employment setting may not violate Title VII, HUD does not believe the proposed additions to § 100.600(a)(2)(i)(A) are necessary.

Issue: A commenter supported HUD's identification of the relationship of the persons involved as a factor to be considered when determining whether hostile environment harassment has occurred, but recommended that the final rule further refine the concept. Specifically, in the homeowner's association context, the commenter drew distinctions between the relationships among the different resident-owners and between a board member and a resident-owner. The commenter also distinguished these relationships from landlord-tenant relationships.

HUD Response: HUD appreciates these distinctions and believes the rule already accommodates them by requiring the relationship of the parties involved be taken into account in determining whether a hostile environment has been created. This is one of several factors that HUD identified for evaluating allegations of hostile environment harassment. In a community governed by a homeowner's association, for example, the influence an owner-board member has over another resident by virtue of his or her authority to make association policy, to approve homeowner requests, and to bring or adjudicate charges of association rule violations may be greater than a non-board member, and thus each person's relationship to the victim should be considered when assessing whether a hostile environment exists. No further refinement to the rule is necessary to address the commenter's concerns; nor is any further refinement desirable, as it would risk inadvertently inserting limiting factors into the otherwise broad and flexible totality of the circumstances test.

(B) Physiological or Physical Harm: § 100.600(a)(2)(i)(B)

Issue: A commenter stated that § 100.600(a)(2)(i)(B) of the proposed rule, which concerns psychological or physical harm, is confusing. The commenter requested that HUD clarify the meaning of this provision.

HUD Response: HUD agrees that § 100.600(a)(2)(i)(B) may be confusing and has revised this provision at the final rule stage; the revision is intended to clarify without altering the meaning of the provision. Proposed § 100.600(a)(2)(i)(B) provided that “Evidence of psychological or physical harm is relevant in determining whether a hostile environment was created, as well as the amount of damages to which an aggrieved person may be entitled. Neither psychological nor physical harm, however, must be demonstrated to prove that a hostile environment exists.” Final § 100.600(a)(2)(i)(B) provides that “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment was created and, if so, the amount of damages to which an aggrieved person may be entitled.” As explained at the proposed rule stage, evidence of such harm is but one of many factors that may be considered in assessing the totality of the circumstances. So long as the unwelcome conduct is sufficiently severe or pervasive as to interfere with or deprive the victim of a right protected by the Act, there is no need to also demonstrate psychological or physical injury in order to prove a hostile environment violation.

ii. Title VII Affirmative Defense: § 100.600(a)(2)(ii)

Issue: HUD received several comments on § 100.600(a)(2)(ii) of the proposed rule, which provides that the Title VII affirmative defense to an employer's vicarious liability for hostile environment harassment by a supervisor does not apply to claims brought pursuant to the Fair Housing Act. Several commenters commended HUD's decision not to extend the Title VII affirmative defense to the Fair Housing Act and agreed with HUD that such a defense would be inappropriate in the housing context, in part because of the lack of an exhaustion requirement under the Fair Housing Act, as well as the differences between an agent in the employment context versus an agent in the housing context.

Other commenters recommended that HUD apply the judicially-created Title VII affirmative defense to Fair Housing Act claims. One such commenter stated that HUD, by rule, cannot import a Title VII cause of action onto the Fair Housing Act without the judicially-created limitations on a Title VII employer's liability under that cause of action. Another commenter believed that HUD eliminated an existing affirmative defense for housing providers that is available in the employment context. Given the scope of potential harassment claims, this commenter found unwarranted HUD's position that the Title VII affirmative defense is not relevant to harassment in the housing context because, in HUD's view, a housing agent who harasses residents is inevitably aided by his or her agency relationship with the housing provider. In the commenter's view, a responsible housing provider who exercises reasonable care to prevent harassment, and who provides a complaint mechanism that a resident unreasonably fails to invoke, should be afforded the same affirmative defense available to employers in analogous situations. Another commenter asked HUD to reconsider its decision to reject the affirmative defense as it appears unfair and based on an assertion that agents of housing providers are equivalent to a supervisory employer in terms of their power over applicants and/or tenants.

HUD Response: After carefully considering the analysis provided by the commenters on both sides of the issue, HUD has retained its view that the Title VII affirmative defense is not appropriate to include as a defense under the Fair Housing Act. HUD has never found occasion to employ such a defense and remains unaware of any court having extended the Title VII affirmative defense to fair housing claims, and commenters did not identify any such case law. Moreover, unlike Title VII, which requires employees to exhaust their administrative remedies before filing an action in court, the Fair Housing Act has no exhaustion requirement, and nothing in the text of the Fair Housing Act otherwise indicates that Congress intended to permit a housing provider to avoid vicarious liability for discriminatory harassment perpetrated by its agents by establishing its own complaint process or procedure. To the contrary, the Act authorizes any aggrieved person to directly commence a civil action in federal or state court, whether or not the individual has previously chosen to file an administrative complaint with HUD.26 Therefore, as explained in the preamble to the proposed rule, the Title VII affirmative defense is not appropriately applied to harassment in the housing context because its adoption would impose burdens on victims of discriminatory harassment that are incompatible with the broad protections and streamlined enforcement mechanisms afforded by the Fair Housing Act.

26See 42 U.S.C. 3614(a).

HUD notes that some comments on this issue demonstrated a misunderstanding of the potential scope of the Title VII affirmative defense. The Title VII affirmative defense does not apply to harassment claims based on direct liability. Thus, contrary to the perceptions of some commenters, the affirmative defense does not apply to cases in which an employer—or housing provider—knew or should have known of an agent or third-party's harassment and failed to stop it, because such cases involve direct rather than vicarious liability.

Therefore, in exercising its power to promulgate rules to interpret and carry out the Act, HUD believes it would be inappropriate to add, for the first time, an affirmative defense that would require victims of hostile environment harassment—who are often housing insecure or otherwise especially vulnerable—to choose between the risk of retaliation by the perpetrator and the risk of losing their right to hold a housing provider liable for the acts of its agents. Instead, the traditional principles of vicarious liability—including those standards that hold a principal liable for an agent's conduct that is taken within the scope of employment, with the apparent authority of the principal, or that is otherwise aided by the agency relationship—will continue to govern a housing provider's liability for harassment. While HUD declines to extend the Title VII affirmative defense to the Fair Housing Act, the development and dissemination of anti-harassment policies will still assist housing providers to avoid litigation by identifying and quickly addressing improper conduct by employees or other agents.

Issue: A commenter requested that HUD create safe harbors from liability for housing providers for harassment by their agents and third-parties. Specifically, the commenter stated that liability for unknown and unintended harassment by an agent or third-party should not be imposed on a housing provider where the housing provider: (1) Provides periodic mandatory fair housing training for its employees and agents (including training related to harassment claims); (2) requires unaffiliated management companies to conduct similar training of their employees, report to the property owner on a regular basis about the steps it is taking to avoid fair housing claims generally, and promptly report any potential fair housing claim to a designated official of the housing provider; and (3) implements and publicizes a hotline or other secure communication mechanism whereby a tenant can confidentially notify the housing provider about possible harassment by employees or other tenants.

Another commenter expressed concern that the rule as proposed would expand a PHA's exposure to liability by making the PHA liable for perceived hostile environment harassment that occurs beyond its knowledge or control and fails to create or incentivize any new remedies to protect tenants against hostile environment harassment. As a result, according to the commenter, the proposed rule raises the possibility that future litigation over alleged harassment might be driven by plaintiff attorneys' fees rather than the merit of the allegations or effective remedies. In light of these concerns, the commenter suggested that HUD revise the proposed rule to adopt defenses similar to those applicable to public agencies under California state law for injuries caused by dangerous conditions on the public agency's property. As described by the commenter, the State law defense provides that liability attaches to the public agency if the plaintiff establishes that: (1) The public employee's negligence or wrongful act or omission created the dangerous condition; or (2) the public entity had actual or constructive notice of the dangerous condition before the injury occurred. The commenter believes this standard incentivizes the public agency to maintain its property and train its staff in order to limit its exposure to liability and reduce the risk of injuries.

HUD Response: As explained in the preamble to the proposed rule, traditional principles of tort liability and agency law apply in fair housing cases. The standards for direct and vicarious liability established in this final rule continue to reflect such principles and do not impose any new legal obligations or create or define new agency relationships or duties of care. For the same reasons that HUD does not interpret the Fair Housing Act to import the Title VII affirmative defense for a claim of hostile environment harassment by the provider's agent, HUD does not believe the requested safe harbor or state law-derived defense from liability is appropriate.

The California State law identified by the commenter essentially imposes a negligence standard for public agency liability, which is akin to the standard of direct liability that governs Fair Housing Act claims under § 100.7(a)(1)(ii). In addition, under traditional principles of agency law, a housing provider may be held vicariously liable for the discriminatory acts of an employee or agent regardless of whether the housing provider knew of or intended the discriminatory conduct where the employee was acting within scope of his or her agency, or where the harassment was aided by the agency relationship. HUD believes that traditional tort and agency law standards for assessing liability under the Act will encourage housing providers to provide appropriate training for their staff and to ensure compliance with the Act.

Issue: A commenter asserted that the proposed rule, including HUD's decision not to adopt the Title VII affirmative defense, raises Federalism implications. The commenter stated that the proposed rule creates a cause of action based on Title VII law that could, ostensibly, be brought against a State, even when the actions are performed by a city or other sub-recipient of funds, and obviate the State's sovereign immunity despite its ongoing assertion that it has not waived such sovereign immunity. The commenter said that the rule would do so while removing the judicially-created Title VII affirmative defense. The commenter recommended that HUD withdraw the rule or create a specific carve-out for actions against a State that limits and defines the extent of vicarious liability, including a safe-haven for conduct or policy akin to an affirmative defense.

HUD Response: Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (1) imposes substantial, direct compliance costs on state and local governments and is not required by statute, or (2) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. Under the Executive Order, Federalism implications are those having substantial direct effects on states or local governments (individually or collectively), on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This final rule does not have such implications. As discussed elsewhere, the rule creates no new cause of action, liability or obligation on the part of any housing provider, including a State. The rule interprets the Fair Housing Act's prohibition on discriminatory harassment, and in doing so, neither alters the substantive prohibitions against discrimination in the Act nor creates enhanced liability or compliance costs for States or any other entities or individuals. Similarly, the rule does not alter any sovereign immunity protections that a State may have under the Eleventh Amendment. In addition, the rule does not remove a pre-existing affirmative defense, because no court of which HUD is aware has ever applied the Title VII affirmative defense or any other affirmative defense or safe harbor to Fair Housing Act claims; nor has HUD ever applied such a standard. HUD notes further that creating an affirmative defense or safe harbor for States would not be consistent with Congressional intent, for the reasons discussed above.

b. Type of Conduct: § 100.600(b)

Issue: A commenter inquired whether a verbal or written account from an aggrieved tenant would be enough to comprise a showing of hostile environment harassment under the Act.

HUD Response: A verbal or written account from an aggrieved tenant may be enough to provide notice to a housing provider that a hostile environment may be occurring, but whether it would be sufficient to establish that the conduct is sufficiently severe or pervasive to create a hostile environment depends on the totality of the circumstances.

c. Number of Incidents: § 100.600(c)

Issue: A commenter expressed concern that the proposed rule includes both a “totality of the circumstances standard” and a “single incident standard” and asked HUD to provide more descriptive language to determine the existence of a hostile environment based on such standards. The commenter asked HUD to clarify or provide examples of when a single incident of harassment would be sufficient to create a hostile environment. Several other commenters expressed approval of § 100.600(c) of the proposed rule, which provides that a single incident of harassment because of race, color, religion, sex, familial status, national origin, or disability may constitute a discriminatory housing practice, where the incident is severe, or evidences a quid pro quo. Other commenters stated that in some cases a single act can be so severe as to deprive individuals of their right to use and enjoy their housing.

HUD Response: HUD did not intend to propose two different standards for determining whether hostile environment harassment has occurred. To avoid confusion and better clarify the relationship between § 100.600(c) and § 100.600(a)(2), HUD is revising § 100.600(c) at this final rule stage. Section 100.600(a)(2) of the rule provides the only standard that must be met to prove a claim of hostile environment harassment under the Act—namely, that: A person was subjected to unwelcome spoken, written, or physical conduct; the conduct was because of a protected characteristic; and the conduct was sufficiently severe or pervasive as to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. As provided in § 100.600(a)(2)(i), a determination of whether this standard has been met is to be based on the totality of the circumstances. Section 100.600(c) is included in the rule to make clear that a single incident of harassment because of a protected characteristic, if sufficiently severe, can constitute a hostile environment harassment violation (as defined in § 100.600(a)(2)). Whether a claim of hostile environment harassment is based on a single incident or repeated incidents of unwelcome conduct, an assessment of the totality of the circumstances is still required. For example, the nature of the unwelcome conduct (e.g., whether it was spoken, written and/or physical) and the location of the conduct (e.g., whether it occurred inside the victim's apartment or in a common space), among other potential considerations, would factor into an assessment of whether a single incident of harassment was sufficiently severe to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act.

HUD is revising proposed § 100.600(c) at this final rule stage as follows. Proposed § 100.600(c) provided that: “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is severe, or evidences a quid pro quo.” Final § 100.600(c) now provides: “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.”

B. Illustrations: §§ 100.60, 100.65, 100.80, 100.90, 100.120, 100.130, and 100.135

Issue: Several commenters supported the illustrations included throughout the proposed rule and asked HUD to provide additional examples of prohibited practices in the final rule. They requested more examples of: Unwelcome conduct; how quid pro quo harassment occurs with respect to protected classes other than sex; single incidents that constitute a hostile environment; and when direct liability exists. Commenters also recommended that HUD add to the final rule examples clarifying the relationship between age and disability and add examples of harassment of pregnant women, Muslims, persons with limited English proficiency, persons with mental health-related disabilities or HIV/AIDS, and persons who assert their rights to organize. Another commenter stated that HUD has provided useful illustrations of what does not violate the Act in other fair housing contexts, and requested that HUD do the same here, citing 24 CFR 100.205(b) (concerning the impracticality of meeting the Act's design and construction standards).

HUD Response: HUD retains the illustrations contained in the proposed rule, but otherwise declines to add more illustrations to the final rule. The rule contains numerous illustrations of possible quid pro quo and hostile environment harassment referencing all protected classes. But whether illegal harassment has or has not occurred in a particular situation is fact-specific and must be determined on a case-by-case basis. For this reason, the illustrations provided are simply more specific descriptions of the legal standard, e.g., conditioning the availability of housing on a person's response to sexual harassment illustrates an unlawful refusal to sell or rent. Providing illustrations as to what does not violate the Act would not be appropriate because of the necessarily fact-specific nature of such an inquiry. HUD notes that § 100.205(b), which the commenter cited, does not describe conduct that does not violate the Act, but rather provides examples of when the impracticality exception to the Act's design and construction requirements is applicable. Lastly, some of the suggested examples are outside the scope of the Act, e.g., the right to organize, but HUD notes that persons would be protected by the Act to the extent the harassment is because of their race, color, religion, sex, familial status, national origin, or disability.

C. Liability for Discriminatory Housing Practices: § 100.7 a. Direct Liability for One's Own Discriminatory Conduct: § 100.7(a)(1)(i)

Issue: A commenter stated that the language in § 100.7(a)(1)(i), which states that a person is directly liable for the person's own conduct that results in a discriminatory housing practice, may lead to the liability of innocent actors and third-parties who somehow contributed to an illegal discriminatory action. The commenter gave as an example a situation in which a person supplied the pen that a housing provider used to make notes on an application that the housing provider later rejected because of a protected characteristic of the applicant.

HUD Response: The rule creates no new or enhanced forms of liability. As discussed in the preamble of the proposed rule, § 100.7(a)(1)(i) does nothing more than restate the most basic form of direct liability, i.e., that a person is directly liable for his or her own discriminatory housing practices, as defined by the Act. Whether a person's conduct constitutes a discriminatory housing practice under sections 804-806 or 818 of the Act depends upon the specific facts.

b. Direct Liability for Negligent Failure To Correct and End Discrimination: § 100.7(a)(1)(ii) and (iii)

Issue: Several commenters expressed concern about the “should have known” standard in proposed § 100.7(a)(1)(ii) and (iii), which states that a person is directly liable for “(ii) [f]ailing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct,” and “(iii) [f]ailing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct . . . ” (emphasis added).

Some commenters stated that this standard creates almost certain liability for landlords and that requiring actual knowledge would be more fair to property owners because liability would only attach for failing to act on known discrimination. A commenter stated that the final rule should limit liability where a housing provider has limited knowledge of misconduct. In contrast, other commenters stated that the “knew or should have known” standard is reasonable and consistent with the Fair Housing Act, legal negligence principles, and business practices of housing providers. One commenter complained that the proposed rule appears to require actual knowledge, even though the standard only requires that a defendant “should have known” of the harassment.

Commenters asked HUD to clarify how a housing provider “should have known” about harassment, especially in the context of tenant-on-tenant harassment. A commenter questioned what the housing provider needs to know before liability attaches and whether the housing provider needs to know that the harasser's actions violate the Fair Housing Act or only that the harasser took some action toward the victim. Several commenters expressed concern that a PHA might be liable when a housing voucher holder is harassed but neither the apartment owner nor voucher holder informs the housing agency about the harassment. One commenter expressed a similar concern that owners living in another city or state may not learn that harassment is taking place on their property unless the tenant tells the owner, and another commenter asked about a PHA's potential liability when harassment occurs over the internet but is unknown to the housing agency.

HUD Response: The “knew or should have known” standard is well established in civil rights and tort law.27 A housing provider “should have known” of the harassment of one resident by another when the housing provider had knowledge from which a reasonable person would conclude that the harassment was occurring. Such knowledge can come from, for example, the harassed resident, another resident, or a friend of the harassed resident.28 There is no requirement that the resident contact the housing provider about the harassment, only that the housing provider have knowledge from which a reasonable person would conclude that harassment was occurring. If the housing provider has no information from which a reasonable person would conclude that one resident or a third-party was harassing another resident, the housing provider is not liable for failing to take action to correct and end the harassment. If the knowledge component is not met, a housing provider cannot be held liable for a resident's or third-party's discriminatory conduct. HUD disagrees that this standard will subject landlords to certain liability. Application of this standard to the liability provisions of the rule helps clarify the Act's coverage for residents and housing providers. It is intended to help guide housing providers in their assessment of when to intervene to prevent or end discriminatory conduct. HUD encourages housing providers to create safe, welcoming, and responsive housing environments by regularly training staff, developing and publicizing anti-discrimination policies, and acting quickly to resolve complaints once sufficient information exists that would lead a reasonable person to conclude that harassment was occurring.

27 As the Supreme Court has recognized, fair housing actions are essentially tort actions. See Meyer v. Holley, 537 U.S. 280, 285 (2003) (citing Curtis v. Loether, 415 U.S. 189, 195-96 (1974)); see also Burlington Indus. v. Ellerth, 524 U.S. 742, 759 (“An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII. . . .”) (emphasis added).

28See, e.g., Neudecker v. Boisclair Corp., 351 F.3d at 364 (owner may be liable for acts of tenants and management's children after failing to respond to plaintiff's complaints of harassment); Bradley v. Carydale Enterprises, 707 F. Supp. 217 (E.D. Va. 1989) (finding that owners and managers' failure to address one tenant's complaints of racial harassment by another tenant stated a claim under 42 U.S.C. 1981 and 1982).

Issue: A commenter was concerned that § 100.7(a)(1)(ii) is seeking to hold the agent liable for the actions of its principal, contrary to Supreme Court precedent, and asked why this provision is necessary in light of proposed § 100.7(b) (vicarious liability), which states that the housing provider is already liable for the unlawful actions of the agent, whether known or not.

HUD Response: Section 100.7(a)(1)(ii) addresses a principal's direct liability for the principal's own negligent conduct in overseeing (or failing to oversee) its agent or employee. Under the negligence theory of direct liability, the principal is liable only if the principal knew or should have known of the agent's discriminatory conduct and failed to take corrective action to end it. Section 100.7(b), by contrast, holds the principal vicariously liable for the discriminatory conduct of its agent, regardless of whether the principal knew or should have known of the agent's conduct. As the commenter noted, an agent is not vicariously liable for the principal's conduct, but is directly liable for his or her own actions. Section 100.7 does not create liability that does not already exist; it does not hold the agent liable for the conduct of the principal, and it is entirely consistent with traditional agency principles and Supreme Court precedent.

Issue: A commenter asked for clarification of the term “third-party” in § 100.7(a)(1)(iii). The commenter was concerned that if left undefined, the term would include everyone. The commenter asked HUD to limit the term to what the commenter perceived to be HUD's primary concern—“liability resulting from a landlord's failure to assist a tenant subject to another tenant's harassment.”

HUD Response: HUD does not agree that its use of the term “third-party” requires further clarification in the text of the rule. In the context of the rule, liability for discriminatory conduct by a “third-party” is appropriately limited to a non-employee or non-agent who engaged in quid pro quo or hostile environment harassment of which the housing provider knew or should have known and had the power to correct.

Issue: A commenter stated that it is unclear from the proposed rule whether the obligation in proposed § 100.7(a)(1)(iii) to take action to end a discriminatory housing practice by a third-party must be derived from a contract, lease, or law, or whether it could be derived from these sources. The commenter also requested that HUD clarify in the rule whether generic lease provisions related to the use and enjoyment of one's home that are found in almost every lease would be enough to create the obligation and related liability contemplated in § 100.7(a)(1)(iii). Another commenter expressed a concern that housing providers would take steps to minimize their liability for failing to take corrective action by revising their leases and other documents so that they do not create a duty to protect tenants. A commenter expressed concern that the term “duty,” incorporated from other laws and contracts, is difficult to fully assess and therefore bound to create unanticipated consequences.

HUD Response: HUD recognizes that proposed § 100.7(a)(1)(iii) may have caused some confusion, so HUD has reworded the provision in the final rule. Proposed § 100.7(a)(1)(iii) stated that a person is directly liable for “failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct. The duty to take prompt action to correct and end a discriminatory housing practice by a third-party derives from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowner's association, condominium or cooperative), or by federal, state or local law.” Revised section 100.7(a)(1)(iii) of this final rule provides that a person is directly liable for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct a discriminatory housing practice by a third-party depends upon the extent of control or any other legal responsibility the person may have with respect to the conduct of such third-party.” The final rule does not use the term “duty,” and no longer identifies specific categories of potential sources for such a duty. A housing provider's obligation to take prompt action to correct and end a discriminatory housing practice by a third-party derives from the Fair Housing Act itself, and its liability for not correcting the discriminatory conduct of which it knew or should have known depends upon the extent of the housing provider's control or any other legal responsibility the provider may have with respect to the conduct of such third-party.29 For example, when a housing provider enters into a lease agreement with a tenant, the lease typically obligates the housing provider to exercise reasonable care to protect the residents' safety and curtail unlawful conduct in areas under the housing provider's control, whether or not the lease contains specific language creating that responsibility. Even if the lease does not expressly create such obligations, the power to act may derive from other legal responsibilities or the operation of law.30

29See, e.g., Neudecker v. Boisclair Corp., 351 F. 3d at 364 (owner may be liable for acts of tenants and management's children after failing to respond to plaintiff's complaints of harassment); Fahnbulleh v. GFZ Realty, LLC, 795 F. Supp. 2d 360, 364-65 (D. Md. 2011) (denying landlord's motion to dismiss because the Act imposes no categorical rule against landlord liability for tenant-on-tenant harassment); Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, *26 (D.D.C. 1997) (condo association that knew of harassment by resident but failed to take corrective actions may violate Act).

30See, e.g., Wilstein v. San Tropai Condo. Master Ass'n, 1999 U.S. Dist. LEXIS 7031, *28-33 (N.D. Ill. Apr. 21, 1999) (rejecting condo association's argument that it had no duty to stop harassment of plaintiff by other residents and holding that association could be liable where evidence indicated that association knew of the harassment and bylaws authorized the association to regulate such conduct); see also Bradley v. Carydale Enterprises, 707 F. Supp. 217 (E.D. Va. 1989) (finding that owners and managers' failure to address one tenant's racial harassment of a neighboring tenant states a claim under 42 U.S.C. 1981, 1982).

Issue: A commenter expressed concern that proposed § 100.7(a)(1)(iii) creates liability on the part of a community association (homeowner association, condominium or cooperative) for the illegal acts of residents over whom they have no control. The commenter urged HUD to remove or revise the proposed rule's extension of direct liability to community associations for the discriminatory actions of non-agents. The commenter stated that community associations generally lack legal authority to mandate that residents take actions described in the preamble of the proposed rule because the associations cannot evict homeowners or otherwise impose conditions not specifically authorized by the association's covenants, conditions, and restrictions (CC&Rs) or state law. The commenter suggested that if the language in § 100.7(a)(1)(iii) remains, it should be modified to clearly state which terms and conditions in association bylaws and regulations constitute a duty on the part of an association or its agents to investigate and punish residents for illegal discriminatory housing practices.

HUD Response: As noted above, HUD has slightly revised § 100.7(a)(1)(iii) to clarify that a housing provider is liable under the Fair Housing Act for third-party conduct if the provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. HUD also notes that the rule does not add any new forms of liability under the Act or create obligations that do not otherwise exist. The rule does not impose vicarious liability (see § 100.7(b)) on a community association for the actions of persons who are not its agents. Section 100.7(a)(1)(ii) describes a community association's liability for its own negligent supervision of its agents, and § 100.7(a)(1)(iii) describes a community association's liability for its own negligence for failing to take prompt action to correct and end a discriminatory housing practice by a third-party. With respect to § 100.7(a)(1)(iii), the rule requires that when a community association has the power to act to correct a discriminatory housing practice by a third party of which it knows or should have known, the community association must do so.

As the commenter recognizes, a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association's CC&Rs or by other legal authority.31 Community associations regularly require residents to comply with CC&Rs and community rules through such mechanisms as notices of violations, threats of fines, and fines. HUD understands that community associations may not always have the ability to deny a unit owner access to his or her dwelling; the rule merely requires the community association to take whatever actions it legally can take to end the harassing conduct.

31See, e.g., Wilstein v. San Tropai Condo. Master Ass'n, supra*28-33; Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, *26. See also Freeman v. Dal-Tile Corp., 750 F. 3d 413, 422-23 (4th Cir. 2014) (holding that “an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end [it].”) (internal quotation marks and citations omitted); Galdamez v. Potter, 415 F. 3d 1015, 1022 (9th Cir. 2005) (“An employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.”).

Issue: A few commenters suggested that HUD should reconsider imposing liability on a landlord for tenant-on-tenant harassment because the law in this area is not well-settled. The commenters expressed concern that proposed § 100.7(a)(1)(iii) exceeds the scope of the Act by expanding liability for housing providers to include liability for third-party harassment of a resident when the housing provider did not act with discriminatory intent. One commenter, relying on Title VII case law and an interpretation of the phrase “because of,” stated that a landlord must have acted with discriminatory intent in order to be liable under the Fair Housing Act. Another commenter stated that although section 804(a) of the Fair Housing Act does not require a showing of intentional discrimination, claims brought under sections 804(b) and 817 of the Act do, citing Francis v. King Park Manor, Inc., 91 F. Supp. 3d 420 (E.D.N.Y. 2015). Another comment stated that to establish a housing provider's liability for failing to take action to correct third-party harassment, the plaintiff must show not just that the housing provider failed to correct the harassment but also that the housing provider did so because of animus against the victim due to a protected characteristic. A commenter pointed to Lawrence v. Courtyards of Deerwood Ass'n, Inc., 318 F. Supp. 2d 1133 (S.D. Fla. 2004), as an example of a case in which the court dismissed the fair housing claim against the housing provider because the plaintiffs failed to establish that the housing provider's ineffective response to the harassment was due to racial animus. Commenters also pointed to Ohio Civil Rights Comm'n v. Akron Metro. Hous. Auth., 892 NE.2d 415, 420 (Ohio 2008), in which the court declined to impose liability on landlords for failing to take corrective action in response to discriminatory harassment committed by the landlord's tenants. A commenter also suggested that not requiring discriminatory animus on the part of the housing provider would amount to strict liability. The commenters proposed that in light of these contrary federal and state court decisions, HUD should require proof of some degree of animus by the housing provider before subjecting the provider to direct liability for the acts of third parties.

HUD Response: HUD does not agree that a housing provider's failure to act to correct third-party harassment must be motivated by a discriminatory intent or animus before the provider can be held liable for a Fair Housing Act violation. In reaching this conclusion, HUD considered its own experience in administering and enforcing the Fair Housing Act, the broad remedial purposes of the Act,32 relevant case law including the Supreme Court's recent ruling in Texas Department of Community Affairs v. Inclusive Communities Project, Inc. holding that the Fair Housing Act is not limited to claims of intentional discrimination, and the views of the EEOC regarding Title VII. The case law cited by the commenters fails to support the proposition that the Fair Housing Act requires discriminatory intent in order to find a housing provider liable for its negligent failure to correct resident-on-resident or other third-party discriminatory conduct. The district court decision in Francis v. Kings Park Manor is the sole exception to that principle, and HUD disagrees with its ruling. HUD notes that this decision is on appeal to the Second Circuit.

32See e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982) (Congress intended Fair Housing Act to be broadly remedial); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) (describing the Fair Housing Act as “a comprehensive open housing law”); 42 U.S.C. 3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”).

Section 100.7(a)(1)(iii) sets out a negligence standard of liability, which does not require proof of discriminatory intent or animus on the part of the provider, but is far from strict liability. Under this standard, a plaintiff or the charging party must prove three elements to establish a housing provider's liability for third-party harassment: (1) The third-party created a hostile environment for the plaintiff or complainant; (2) the housing provider knew or should have known about the conduct creating the hostile environment; and (3) the housing provider failed to take prompt action to correct and end the harassment while having the power to do so. HUD does not agree that a fourth element—that the housing provider's failure to act was more than negligent, and was motivated by discriminatory intent—is necessary or appropriate.

Contrary to one comment, the Supreme Court in Inclusive Communities Project has already ruled that the “because of” clause in the Fair Housing Act does not require proof of discriminatory intent. While not addressing every aspect of the cited decisions, HUD notes the following: In Lawrence v. Courtyards of Deerwood Ass'n, cited by another commenter, the court dismissed the discriminatory harassment claim not for lack of discriminatory intent on the part of the landlord, but because it found, inter alia, that the dispute did not involve discriminatory harassment of one tenant by another but instead reflected mutual antagonism between two tenants. The court in Lawrence distinguished Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, *22 (D.D.C 1997), which held the landlord liable under the Fair Housing Act for its failure to adequately address sexual harassment of one tenant by another because “the [Carrollsburg Condo] association's by-laws specifically authorized the association to curtail conduct that contravened the law” and provided that a violation of local or federal law was a violation of the association rules.33

33Lawrence v. Courtyards of Deerwood Ass'n, 318 F. Supp. 2d at 1149 (citing Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762 at *22.

Finally, the state court decision cited by one commenter did not involve claims under the Fair Housing Act and does not provide reason for HUD to alter § 100.7(a)(1)(iii) at the final rule stage. In Ohio Civil Rights Commission v. Akron Metropolitan Housing Authority, the Ohio Supreme Court's refusal to hold a landlord liable under a state civil rights law for failing to take corrective action in response to one tenant's racial harassment of another tenant was premised on an incorrect reading of Title VII jurisprudence. The court misconstrued Title VII case law to require an agency relationship between an employer and a perpetrator of harassment in order to hold the employer liable for negligently failing to stop sexual harassment by the perpetrator.34 In fact, under Title VII, an agency relationship is not required in order to hold employers liable for negligently failing to stop discriminatory harassment of which the employer knew or should have known. Both the EEOC and the federal courts have recognized that an employer may be held liable for negligently failing to stop discriminatory harassment in the workplace by non-employees or non-agents.35 The principle of liability codified in § 100.7(a)(1)(iii) of this final rule is consistent with these Title VII authorities and, in HUD's view, appropriately serves the Fair Housing Act's parallel antidiscrimination objectives in the housing context. In sum, the proposed rule and this final rule reflect HUD's considered judgment, consistent with prevailing precedent and EEOC regulations, that a housing provider (including a homeowner's association) or property manager is liable under the Act for negligently failing to take corrective action against a third-party harasser when the provider or manager knew or should have known of the harassment and had the power to end it. In light of the above, HUD declines to make the proposed revisions to the final rule.

34 892 NE.2d at 419-20.

35See 29 CFR 1604.11(e) (“An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where there employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”); see also, e.g., Freeman v. Dal-Tile Corp., 750 F.3d 413, 422-24 (4th Cir. 2014) (employer potentially liable for failing to address discriminatory harassment by a customer); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072-75 (10th Cir. 1998) (same; collecting cases recognizing employer liability for failing to correct third-party harassment).

Issue: A commenter stated that the imposition of liability on private landlords for tenant-on-tenant harassment is inappropriate and will have several negative consequences. The commenter stated that private owners do not have the expertise or resources to undertake what is essentially a social services function to mediate disputes between neighbors. In addition, the commenter expressed concern that the proposed rule could make it more difficult and risky for property owners to take affirmative steps to operate racially integrated housing. The commenter stated that the rule will be an economic disincentive for individuals, companies, and other investors to engage in the business of renting residential real estate and that the Section 8 voucher program depends on the participation of these private entities in order to achieve other fair housing goals. The commenter expressed concern that the effect of the proposed rule will be to reduce the supply of available affordable units, thus disproportionately harming low-income families. Other commenters raised concerns that landlords, when confronted by tenants who mutually accuse each other of harassment, will be unable to take necessary corrective actions because of the rule's prohibition against moving or causing injury to a complaining tenant, or will reprimand the wrong tenant because they lack expertise with investigations.

Numerous other commenters supported the rule's recognition that a housing provider may be directly liable for harassment of a tenant by the housing provider's employee or a third-party. These commenters stated that any suggestion that this rule will unduly burden housing providers is exaggerated, that the rule is wholly consistent with the ordinary responsibilities of housing providers to ensure habitability, and that housing providers are familiar with the tools they have to enforce their own rules—tools they frequently wield.

HUD Response: The rule does not create new or enhanced liabilities for housing providers, including those who participate in the Section 8 program. HUD believes that this rule will help clarify the obligations that housing providers already have in offering and maintaining housing environments free from discrimination and that comply with the Fair Housing Act. We are long past the time when racial harassment is a tolerable price for integrated housing; a housing provider is responsible for maintaining its properties free from all discrimination prohibited by the Fair Housing Act. Under the Act, discriminatory practices are those that violate sections 804, 805, 806, or 818. Such practices do not encompass all incivilities, and thus it is important to note that not every quarrel among neighbors amounts to a violation of the Fair Housing Act.36 Ending harassing or otherwise discriminatory conduct may necessitate evicting the tenant who has engaged in the conduct, not the aggrieved tenant.37 The Act does not, however, prohibit housing providers from offering to move an aggrieved tenant, as long as that tenant may refuse the offer without consequence or retaliation.

36See, e.g., Bloch v. Frischholz, 587 F.3d at 783 (quoting Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327, 330 (7th Cir. 2004) (noting that interference under § 818 “is more than a `quarrel among neighbors' ”); Sporn v. Ocean Colony Condominium Assn, 173 F. Supp. 2d 244, 251-52 (D.N.J. 2001) (noting that section 818 “does not [] impose a code of civility” on neighbors); United States v. Weisz, 914 F. Supp. 1050, 1054-55 (S.D.N.Y. 1996) (holding that allegations that Jewish neighbor harassed complainants because of their religion were “nothing more than a series of skirmishes in an unfortunate war between neighbors”). But see Ohana v. 180 Prospect Place, 996 F. Supp. 238, 243 (E.D.N.Y. 1998) (neighbors who intentionally intrude upon quietude of another's home may violate Act).

37See, e.g., Miller v. Towne Oaks East Apartments, 797 F. Supp. 557, 562 (E.D. Tex.1992) (finding landlord liable for violating Act by evicting both harasser and victim of harassment instead of only harasser).

Issue: Some commenters stated that the proposed rule outlining third-party liability conflicts with HUD's PIH Notice 2015-19, titled Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions. One commenter was concerned that PIH Notice 2015-19 makes it harder for PHAs to correct situations that may lead to hostile environment harassment, while the proposed harassment rule would make it easier for PHAs to be held liable for the activities of tenants who take actions against other tenants to create a hostile environment. Another commenter was concerned that PHAs would be forced to choose whether to comply with HUD's harassment rule or with HUD's Notice, which prohibits the use of an arrest record as evidence of criminal activity that can support an adverse admission, termination, or eviction decision. These commenters therefore asked HUD to remove third-party liability from the rule.

HUD Response: HUD believes the commenters' concerns are misplaced because there is no conflict between this rule and PIH Notice 2015-19. The rule does not add any new forms of liability under the Fair Housing Act and the formalization of clear and consistent standards for evaluating harassment claims under the Act does not conflict with the requirements of the PIH Notice. Compliance with PIH Notice 2015-19 does not prevent a PHA from considering reliable evidence of relevant criminal activity when considering how to respond to complaints of harassment. Nor does this rule require a PHA to make use of arrest records to determine whether discriminatory harassment has occurred. Consistent with traditional tort liability principles, as well as current federal Fair Housing Act jurisprudence, this rule codifies HUD's longstanding view that a property owner, including a PHA, may be held liable for failing to take corrective action within its power in response to tenant-on-tenant harassment of which the owner knew or should have known. Where a PHA receives a complaint or otherwise learns of possible discriminatory harassment of one resident by another, the PHA is advised to assess the situation and, if necessary, take appropriate corrective action to end the harassment.

Issue: Several commenters expressed concern that application of the rule would conflict with HUD's homeless or permanent supportive housing programs or might have a detrimental effect on persons with mental disabilities. A commenter stated that tenants with severe mental health disabilities may create a hostile environment for neighbors and asked HUD to explain what direct responsibility the housing provider has to correct negative behaviors. A commenter stated that the rule incentivizes evictions over efforts to determine whether a reasonable accommodation might be appropriate for persons with mental disabilities. Another commenter stated that because tenants with mental illness often have difficulty finding housing, the proposed rule might result in an increased rate of homelessness among persons with mental disabilities. A commenter asked HUD to revisit the proposed rule's third-party liability provision to avoid harming this particularly vulnerable population.

Other commenters stated that the rule would help protect many vulnerable persons from eviction. These commenters supported the statement in the proposed rule's preamble that eviction is only one of the many corrective actions housing providers may utilize to address harassment.

HUD Response: The rule neither changes a housing provider's responsibilities toward tenants with mental disabilities nor incentivizes evictions of such persons. It is not uncommon for the behavior of one tenant to frustrate, displease, or annoy another tenant. This is true for behavior by tenants with and without psychiatric disabilities. The rule does not require a housing provider to take action whenever one tenant engages in behavior that another tenant finds objectionable. The Act prohibits discrimination against applicants and tenants with disabilities, including evicting individuals with disabilities because other tenants find them frustrating, displeasing, or annoying. The Act does not, however, require that a dwelling be made available to a person whose tenancy would constitute a direct threat to the health or safety of others or would result in substantial physical damage to the property of others.38 The housing provider must make an individualized assessment as to whether such a threat exists based on reliable objective evidence that considers: (1) The nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat. In evaluating a recent history of overt acts, a housing provider must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat. Reasonable accommodations must be made when they may be necessary to afford such persons an equal opportunity to use and enjoy a dwelling. HUD refers the reader to the Joint Statement of HUD and DOJ on Reasonable Accommodations under the Fair Housing Act for further information.39

38 42 U.S.C. 3604(f)(9).

39See Joint Statement of HUD and DOJ on Reasonable Accommodations Under the Fair Housing Act (May 17, 2004), posted at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf.

1. Corrective Action: § 100.7(a)(2)

Issue: A commenter asked HUD to remove the prohibition against causing injury to a complaining party.

HUD Response: HUD declines to remove the prohibition on causing additional injury to a person who has already been injured by illegal harassment. Permitting such additional injury would be inconsistent with the Act's purposes to prevent unlawful discrimination and remedy discrimination that has already occurred.

Issue: One commenter requested further guidance as to what constitutes appropriate corrective action by a housing provider to stop tenant-on-tenant harassment. The commenter specifically inquired whether a single verbal statement by a landlord to a tenant who allegedly engaged in harassing conduct would be sufficient corrective action to relieve a landlord from liability under the rule. Another commenter asked HUD to impose realistic and reasonable limitations on housing providers' obligation to take corrective action.

HUD Response: There is no one way that a housing provider must respond to complaints of third-party harassment, although the rule makes clear that a provider that fails to effectively respond may be subject to liability under the Act. Section 100.7(a)(2) provides that corrective actions must be effective in ending the discrimination, but may not injure the aggrieved persons. For example, corrective actions appropriate for a housing provider to utilize to stop tenant-on-tenant harassment or other third-party harassment might include verbal and written warnings; enforcing lease provisions to move, evict, or otherwise sanction tenants who harass or permit guests to harass; issuing no-trespass orders against guests; or reporting conduct to the police. What constitutes appropriate and effective corrective action will depend on the nature, frequency, and severity of the harassment. While in some cases a single verbal reprimand by a housing provider may be sufficient to effectively end discriminatory harassment of one tenant by another, the housing provider should notify the victim that such action was taken, and it is advisable for the housing provider to document this action in its records. Additionally, the housing provider should follow up with the victim of the harassment after the corrective action is taken to ensure that it was effective. If the housing provider knows or should have known that the corrective action was ineffective, the provider has a responsibility to take additional corrective actions within its power. If, however, corrective action is effective in ending the discriminatory conduct, a housing provider is not required to take additional action simply because the victim believes further action should have been taken. HUD does not agree that there is a need to add a specific limitation on a housing provider's responsibility to take corrective action within its power to act in response to discriminatory harassment of which the provider knew or should have known.

Issue: A commenter stated that because tenants are not agents or employees, landlords cannot simply compel tenants to take or avoid particular action and do not have the ability to shape or alter tenants' behavior beyond threatening and carrying out evictions. Another commenter asked HUD to consider that there are substantial practical differences between the ability of housing providers to take corrective action to end tenant-on-tenant harassment and their ability to control the actions of their employees because there is no agency relationship in the former. Another commenter stated that most homeowners would be very concerned if association board members, employees, or agents injected themselves into the interpersonal relationships of homeowners and residents to investigate their interactions and relationships for discriminatory elements. This commenter also said that for PHAs, eviction is often unavailable as a remedy for alleged tenant-on-tenant harassment because the U.S. Housing Act of 1937 and federal regulations limit the ability of PHAs to carry out evictions, except for specified causes. In addition, the commenter stated that the result of these restrictions and the proposed rule would be to create significant new liability for PHAs for tenant-on-tenant harassment without creating any new mechanisms for PHAs to mitigate this liability.

In contrast, other commenters stated that the rule does not create any new liability because landlords have an obligation to protect tenants' rights to quiet enjoyment and generally have the right to take actions against renters and occupants who disturb the quiet enjoyment of others.

HUD Response: Neither the proposed rule nor this final rule create new liability for housing providers, including PHAs or homeowner's associations, regarding resident-on-resident harassment. Nor does the rule require a housing provider to take action that is beyond the scope of its power to act. HUD recognizes that specific remedies that may be available to employers to stop an employee's illegal practices will be distinct from those that a housing provider may use to stop residents who are engaging in discriminatory conduct. Creating and posting policy statements against harassment and establishing complaint procedures, offering fair housing training to residents and mediating disputes before they escalate, issuing verbal and written warnings and notices of rule violations, enforcing bylaws prohibiting illegal or disruptive conduct, issuing and enforcing notices to quit, issuing threats of eviction and, if necessary, enforcing evictions and involving the police are powerful tools available to a housing provider to control or remedy a tenant's illegal conduct. These tools are also available to PHAs, and, contrary to one commenter's concern, eviction is available to a PHA to correct a tenant's discriminatory conduct as the PHA may terminate a tenancy for “serious or repeated violation of material terms of the lease,” 24 CFR 966.4(l)(2)(i), which include the obligation that tenants must “act . . . in a manner which will not disturb other residents' peaceful enjoyment of their accommodations. . . .” 24 CFR 966.4(f)(11).

Issue: A commenter expressed concern that a PHA may be held directly liable for failing to correct actions by third-parties over whom they have little or no control. As an example, the commenter cited harassment of a voucher-holding tenant by neighbors who are not also voucher-holders and not otherwise affiliated with the PHA. Similarly, another commenter stated that the rule could be interpreted to make landlords liable for conduct that occurs off their property or that has nothing to do with a tenant's home.

HUD Response: This rule describes the standard for assessing liability under the Fair Housing Act. These fair housing standards apply to private and public landlords alike and do not turn on whether a tenant holds a Housing Choice Voucher or receives other government rental assistance. HUD also reiterates that a housing provider is not responsible for correcting every negative action by any third-party. Rather, the third-party action must constitute a discriminatory housing practice as defined by the Act, and the housing provider must have the power to correct it. As provided in the final rule and discussed elsewhere in this preamble, whether a housing provider has the power to take corrective measures in a specific situation—and what corrective measures are appropriate—is dependent on the facts, including the extent of control or any other legal responsibility the person may have with respect to the conduct of such third-party. There may be instances where the ability to correct the unlawful conduct is beyond a housing provider's control. Thus, when confronted with discriminatory harassment of one of its Housing Choice Voucher-holders or other tenants, the housing agency should explore what corrective actions are within its power and are appropriate to take.

Issue: A commenter suggested that an unintended consequence of the proposed rule could be that property owners would remove security devices, such as video cameras and other surveillance mechanisms, for fear that such measures may create a duty on the part of the property owner to correct neighbor-on-neighbor harassment. In contrast, other commenters stated that housing providers may feel the need to provide for more oversight of residences which may interfere with residents' right to peaceful enjoyment of their dwelling.

HUD Response: Removing security devices will not relieve a housing provider of its obligation to take the actions within its power to promptly correct and end a discriminatory housing practice. Elsewhere in the preamble, HUD discusses various options that may be available to housing providers to address neighbor-on-neighbor harassment.

Issue: A commenter stated that owners should be encouraged to use positive incentives, such as promoting better communication with—and healthy relationships among—tenants, and educating tenants about their rights to prevent harassment, instead of taking corrective actions that may harm tenants, such as ending a lease or evicting a tenant—.

HUD Response: HUD agrees that positive incentives are useful tools for preventing harassment. HUD believes, however, that warnings, threats of evictions, evictions, and lease terminations may also be necessary corrective actions to end harassment. The preamble and rule make clear that there is no one way to prevent or correct harassment, only that the methods need to be effective at ending it.

c. Vicarious Liability: § 100.7(b)

Issue: Several commenters questioned the description of vicarious liability at § 100.7(b) of the proposed rule. One commenter said § 100.7(b) could be interpreted to impose vicarious liability on an organization's directors, officers, or owners and suggested HUD clarify, consistent with Meyer v. Holley, that it is the organization—not the individual directors, officers, or board members—who are the “principal or employer” subject to vicarious liability under the Fair Housing Act. The commenter asked HUD to issue clarification that the proposed regulations do not contravene or attempt to reverse Meyer v. Holley, 537 U.S. 280 (2003). In contrast, other commenters applauded the description of vicarious liability in the rule, stated that the description follows well-established common law tort and agency principles, and expressed support for the proposed rule's reliance on Meyer v. Holley.

HUD Response: Subsection 100.7(b) merely describes the well-established concept of vicarious liability, under which principals may be held liable for the discriminatory acts of their agents or employees whether or not they knew of the discriminatory conduct. As articulated in Meyer v. Holley, and as explained in the preambles to the proposed rule and this final rule, traditional agency principles apply to the Fair Housing Act.40 Under agency principles, a principal is vicariously liable for the actions of his or her agents taken within the scope of their relationship or employment, or for actions taken outside the scope of their relationship or employment when the agent is aided in the commission of such acts by the existence of the agency relationship.41 Determining whether an agency relationship exists is a factual determination that looks to an agent's responsibilities, duties, and functions; whether the discriminatory conduct of the agent was within the scope of the agency relationship or aided by the existence of the agency relationship is also a fact-specific inquiry.

40 537 U.S. at 282, 287.

41See, e.g., Glover v. Jones, 522 F. Supp. 2d 496, 507 (W.D.N.Y. 2007) (holding that “a property owner may be vicariously liable under the Fair Housing Act for the actions of an employee even when they are outside the scope of employment . . . if the employee was aided in accomplishing the tort by the existence of the agency relation.”) (quoting Mack v. Otis Elevator Co., 326 F. 3d 116, 123 (2d Cir. 2003) (internal quotation marks omitted); see also Boswell v. GumBayTay, No. 2:07-CV-135-WKW[WO], 2009 U.S. Dist. LEXIS 45954, *17 (M.D. Ala. June 1, 2009) (holding that vicarious liability attached to property owner where property manager's “position essentially gave him unfettered access to communicate with and personally visit [the plaintiff]” and he “used his power as property manager as a vehicle through which to perpetrate his unlawful conduct by refusing repairs, raising the rent, and attempting to evict [the plaintiff] as a consequence for [her] refusal to provide sexual favors.”); Glover at 522 F. Supp. 2d at 507 (rejecting defendant property owner's motion for summary judgment on the issue of vicarious liability where evidence showed that property manager used his “position as the de facto landlord to perpetrate FHA [harassment] violations . . . giving] him the opportunity to visit the apartment when he wanted, and enabl[ing] him to control Plaintiff's rent”); Richards v. Bono, 2005 U.S. Dist. LEXIS 43585 at *30 (holding that wife/co-owner of property could be vicariously liable for husband's harassment where husband acted as her agent and used his position as owner, property manager, and maintenance supervisor to subject plaintiff to sexual harassment by using a key to enter plaintiff's apartment and threatening plaintiff with eviction).

Issue: Some commenters questioned the statement in the proposed rule's preamble that a principal is vicariously liable for the actions of an agent or employee taken outside the scope of the agency relationship or employment when the agent or employee is aided in the commission of such acts by the existence of the agency relationship. A commenter agreed that a principal is vicariously liable for the acts of its agents committed within the scope of the agency, regardless of knowledge or intent to violate the Act by the principal, but believes that, in adopting the “aided in agency” standard, the proposed rule goes beyond traditional tort concepts and does not reflect the limited concepts of vicarious liability endorsed in Meyer v. Holley. The commenter considered it acceptable to hold a real estate company liable for discriminatory acts or statements made by its brokers in the scope of their agency, but disagreed that a housing provider should be liable for misconduct of a janitorial employee outside the scope of that employee's duty because he wore a badged uniform or possessed keys or passes to tenants' dwellings. Another commenter asked for clarity on the reasoning behind the assertion in the preamble to the proposed rule that an agent who harasses residents or applicants is necessarily aided by his or her agency relationship with the housing provider.

HUD Response: As discussed throughout this preamble, the proposed and final rule do not create new forms of liability. Instead, HUD has decided to adopt well-established principles of agency law, including that a principal may be vicariously liable for the actions of an agent or employee that are taken outside the scope of the employment or agency relationship if the agent or employee is aided in committing the acts by the existence of the employment or agency relationship. Agency law must be applied to the specific facts at issue to determine whether such a situation exists and gives rise to a principal's liability. The statement in the proposed rule that an agent who engages in hostile environment harassment of residents or applicants is aided by the agency relationship with the housing provider was not intended to suggest the agent is necessarily so aided with respect to every discriminatory housing practice. It was intended to explain one of the reasons HUD chose not to import into the Fair Housing Act the Title VII affirmative defense to an employer's vicarious liability for hostile environment harassment. As explained in that context, a housing provider's agent who engages in harassment holds a position of power and authority over the victimized resident or applicant, regardless of the agent's specific duties. This is because a resident or applicant has only an arms-length economic relationship with the housing provider, while an agent-perpetrator is clothed with the authority of the housing provider. Given this inherent imbalance of power and control over the terms or conditions of the housing environment, the distinction between harassment by supervisory and non-supervisory employees that supported the creation of the affirmative defense in the employment context do not extend to the housing context.

D. Other Issues

Issue: A commenter stated that HUD should apply the proposed rule only to its own investigative and administrative actions and should not purport to preempt court-established rules. The commenter stated that in some instances it may be appropriate for federal courts to defer to agency rules, but that this is not a case where Chevron42 deference is appropriate because HUD is not basing the rule on its own experience, but largely on interpretations of federal court decisions. The commenter stated that HUD has no particular expertise in tort law and no authority to interpret tort laws. Another commenter stated that HUD appears to be using the administrative rule-making process to substitute its views for those of the courts, and that HUD must pursue the change it seeks through Congress and/or the courts.

42Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

HUD Response: The commenters misconstrue both the rule and HUD's authority under the Act. The Act specifically grants the Secretary of HUD the authority and responsibility to administer and enforce the Act, including promulgating rules to carry out the Act.43 This rule-making authority is not limited to HUD's investigations or administrative proceedings. Moreover, the rule does not construe tort law, but rather clarifies standards for liability under this part, based on traditional principles of tort liability. It imposes no new legal obligations or duties of care. In addition, the introductory portion of this preamble describes the grounds for Chevron deference.

43 42 U.S.C. 3608(a), 3610, 3615.

Issue: Some commenters disagreed with HUD's statement in the preamble to the proposed rule that the rule does not create additional costs for housing providers and others covered by the Fair Housing Act. They stated that the proposed rule would lead to increased costs for and litigation against housing providers. Among the other costs cited by commenters are costs for compliance and training, increased insurance premiums, and increased liability because many housing providers would not have the ability to remain diligent to address all harassment claims, leaving them vulnerable to litigation. Another commenter said that the proposed rule creates the possibility for substantial judgments for money damages that PHAs have little ability to pay, because they may not use federal funds to pay judgments for damages.

HUD Response: As noted throughout this preamble, this final rule does not impose any new or enhanced liabilities. Rather, it clarifies existing law under the Fair Housing Act and well-established common law tort and agency principles as they apply under the Act. The rule does not change substantive obligations, but merely formalizes them in a regulation. Because the standards articulated in the rule are already law, the risks of liability and costs of complying will not increase with issuance of the rule. HUD presumes that the vast majority of housing providers are in compliance with the law. Any costs incurred by housing providers to come into compliance as a result of this rulemaking will simply be the costs of compliance with a preexisting statute, administrative practice, and case law. In fact, by formalizing uniform standards for investigations and adjudications under the Fair Housing Act, the rule serves to reduce costs for housing providers by establishing greater clarity with respect to how a determination of liability is to be made.

V. Findings and Certifications Regulatory Review—Executive Orders 12866 and 13563

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule was determined to be a “significant regulatory action” as defined in section 3(f) of Executive Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order).

This rule establishes uniform standards for use in investigations and processing cases involving harassment and liability under the Fair Housing Act. In establishing such standards, HUD is exercising its rulemaking authority to bring uniformity, clarity, and certainty to an area of legal practice.

The docket file for this rule is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, Room 10276, 451 7th Street SW., Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Persons with hearing or speech impairments may access the above telephone number via TTY by calling the toll-free Federal Relay Service at 800-877-8339.

Environmental Impact

This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. This rule is limited to the procedures governing fair housing enforcement. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321).

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 4321, et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The rule establishes standards for evaluating claims of harassment and liability under the Fair Housing Act. The scope of the rule is procedural, and the regulatory changes do not establish any substantive regulatory burdens on small entities. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of UMRA.

Executive Order 13132, Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (1) imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or (2) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Catalogue of Federal Domestic Assistance

The Catalogue of Federal Domestic Assistance Number for the equal opportunity in housing program is 14.400.

List of Subjects in 24 CFR Part 100

Aged, Fair housing, Individuals with disabilities, Mortgages, Reporting and recordkeeping requirements.

Accordingly, for the reasons stated in the preamble, and in accordance with HUD's authority in 42 U.S.C. 3535(d), HUD amends 24 CFR part 100 as follows:

PART 100—DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT 1. The authority citation for 24 CFR part 100 continues to read as follows: Authority:

42 U.S.C. 3535(d), 3600-3620.

2. Add § 100.7 to read as follows:
§ 100.7 Liability for discriminatory housing practices.

(a) Direct liability. (1) A person is directly liable for:

(i) The person's own conduct that results in a discriminatory housing practice.

(ii) Failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct.

(iii) Failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third-party depends upon the extent of the person's control or any other legal responsibility the person may have with respect to the conduct of such third-party.

(2) For purposes of determining liability under paragraphs (a)(1)(ii) and (iii) of this section, prompt action to correct and end the discriminatory housing practice may not include any action that penalizes or harms the aggrieved person, such as eviction of the aggrieved person.

(b) Vicarious liability. A person is vicariously liable for a discriminatory housing practice by the person's agent or employee, regardless of whether the person knew or should have known of the conduct that resulted in a discriminatory housing practice, consistent with agency law.

3. In § 100.60, add paragraphs (b)(6) and (7) to read as follows:
§ 100.60 Unlawful refusal to sell or rent or to negotiate for the sale or rental.

(b) * * *

(6) Conditioning the availability of a dwelling, including the price, qualification criteria, or standards or procedures for securing the dwelling, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

(7) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that causes the person to vacate a dwelling or abandon efforts to secure the dwelling.

4. In § 100.65, add paragraphs (b)(6) and (7) to read as follows:
§ 100.65 Discrimination in terms, conditions and privileges and in services and facilities.

(b) * * *

(6) Conditioning the terms, conditions, or privileges relating to the sale or rental of a dwelling, or denying or limiting the services or facilities in connection therewith, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

(7) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting services or facilities in connection with the sale or rental of a dwelling.

5. In § 100.80, add paragraph (b)(6) to read as follows:
§ 100.80 Discriminatory representation on the availability of dwellings.

(b) * * *

(6) Representing to an applicant that a unit is unavailable because of the applicant's response to a request for a sexual favor or other harassment because of race, color, religion, sex, handicap, familial status, or national origin.

6. In § 100.90, add paragraphs (b)(5) and (6) to read as follows:
§ 100.90 Discrimination in the provision of brokerage services.

(b) * * *

(5) Conditioning access to brokerage services on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

(6) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of discouraging or denying access to brokerage services.

7. In § 100.120, add paragraphs (b)(3) and (4) to read as follows:
§ 100.120 Discrimination in the making of loans and in the provision of other financial assistance.

(b) * * *

(3) Conditioning the availability of a loan or other financial assistance on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

(4) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that affects the availability of a loan or other financial assistance.

8. In § 100.130, add paragraphs (b)(4) and (5) to read as follows:
§ 100.130 Discrimination in the terms and conditions for making available loans or other financial assistance.

(b) * * *

(4) Conditioning an aspect of a loan or other financial assistance to be provided with respect to a dwelling, or the terms or conditions thereof, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

(5) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of imposing different terms or conditions for the availability of such loans or other financial assistance.

9. In § 100.135, revise paragraph (d) to read as follows:
§ 100.135 Unlawful practices in the selling, brokering, or appraising of residential real property.

(d) Practices which are unlawful under this section include, but are not limited to:

(1) Using an appraisal of residential real property in connection with the sale, rental, or financing of any dwelling where the person knows or reasonably should know that the appraisal improperly takes into consideration race, color, religion, sex, handicap, familial status, or national origin.

(2) Conditioning the terms of an appraisal of residential real property in connection with the sale, rental, or financing of a dwelling on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.

10. In § 100.400, add paragraph (c)(6) to read as follows:
§ 100.400 Prohibited interference, coercion or intimidation.

(c) * * *

(6) Retaliating against any person because that person reported a discriminatory housing practice to a housing provider or other authority.

11. Add subpart H, consisting of § 100.600, to read as follows: Subpart H— Quid Pro Quo and Hostile Environment Harassment
§ 100.600 Quid pro quo and hostile environment harassment.

(a) General. Quid pro quo and hostile environment harassment because of race, color, religion, sex, familial status, national origin or handicap may violate sections 804, 805, 806 or 818 of the Act, depending on the conduct. The same conduct may violate one or more of these provisions.

(1) Quid pro quo harassment. Quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.

(2) Hostile environment harassment. Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction.

(i) Totality of the circumstances. Whether hostile environment harassment exists depends upon the totality of the circumstances.

(A) Factors to be considered to determine whether hostile environment harassment exists include, but are not limited to, the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.

(B) Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.

(C) Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person's position.

(ii) Title VII affirmative defense. The affirmative defense to an employer's vicarious liability for hostile environment harassment by a supervisor under Title VII of the Civil Rights Act of 1964 does not apply to cases brought pursuant to the Fair Housing Act.

(b) Type of conduct. Harassment can be written, verbal, or other conduct, and does not require physical contact.

(c) Number of incidents. A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.

Dated: August 18, 2016. Gustavo Velasquez, Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2016-21868 Filed 9-13-16; 8:45 am] BILLING CODE 4210-67-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 100 and 165 [Docket Number USCG-2015-0854] RIN 1625-AA00, AA08 Special Local Regulations and Safety Zones; Recurring Marine Events and Fireworks Displays Within the Fifth Coast Guard District AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is issuing a final rule that revises the list of special local regulations and safety zones established for recurring marine events and fireworks displays that take place within the Fifth Coast Guard District area of responsibility. This rule revises the listing of events that informs the public of regularly scheduled marine parades, regattas, other organized water events, and fireworks displays that require additional safety measures provided by regulations. Under this rule, the list of recurring marine events requiring special local regulations or safety zones is updated with revisions, additional events, and removal of events that no longer take place in the Fifth Coast Guard District. When these regulations are enforced, certain restrictions are placed on marine traffic in specified areas. This rulemaking project promotes efficiency by eliminating the need to produce a separate rule for each individual recurring event, and serves to provide notice of the known recurring events requiring a special local regulation or safety zone throughout the year.

DATES:

This rule is effective October 14, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2015-0854 in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rulemaking, call or email Dennis Sens, Fifth Coast Guard District, Prevention Division, (757) 398-6204, [email protected]

SUPPLEMENTARY INFORMATION:

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

The special local regulations listed in 33 CFR 100.501 and safety zones in 33 CFR 165.506 were last amended on April 16, 2015 (80 FR 20418). The Coast Guard published an interim final rule and request for comments on April 22, 2016 (81 FR 23605). During the comment period that ended July 21, 2016 we received one comment.

III. Legal Authority and Need for Rule

The Coast Guard issues this rulemaking under authority in 33 U.S.C. 1231; 33 U.S.C. 1233; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard regularly updates special local regulations and safety zones established for recurring marine events and fireworks displays that take place either on or over the navigable waters of the United States. Under that rule, the list of recurring marine events requiring special local regulations or safety zones is updated with revisions, additional events, and removal of events that no longer take place within the Fifth Coast Guard District. The Fifth Coast Guard District area of responsibility is defined in 33 CFR 3.25.

The purpose of this rulemaking is to ensure the safety of persons, vessels and the navigable waters within close proximity to marine events and or fireworks displays before, during, and after the scheduled event. Publishing these regulatory updates in a single rulemaking promotes administrative efficiency and reduces costs involved in producing a separate rule for each individual recurring event. This action also provides the public with notice through publication in the Federal Register of future recurring marine events and fireworks displays and their accompanying regulations, special local regulations and safety zones. This rule provides separate tables for each Coast Guard Sector within the Fifth Coast Guard District.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received one comment on the Interim final rule published April 22, 2016. The respondent comment addressed a concern that “Any permits for Fireworks Displays must have boundaries set no closer than 500 yards from any fuel depot, shipyard, marina, cargo facility that handles hazardous or flammable cargo or any “facility” that handles hazardous or flammable materials.” The commenter suggested that the safety zone radius should be a distance of 500 yards plus the expected radius of the “hot” area created by the fireworks display.

No changes were made to the rule based upon this comment; however the Coast Guard recognizes the importance of appropriate controls on fireworks displays that take place over and or adjacent to navigable waters of the United States. Accordingly USCG authority and oversight is based on current Federal regulations, applicable National Fire Protection Association (NFPA) codes, and lessons learned from accident report findings. We believe these recommendations provide a more thorough and nuanced safety area than a blanket radius requirement. The CG Captain of the Port (COTP) ensures safety of persons and vessels on navigable waters of the United States in close proximity to fireworks events through coordination with event sponsor, fireworks operator, fire department, police department, Authority Having Jurisdiction (AHJ), and other appropriate entities. The definition of “Authority Having Jurisdiction (AHJ)” is in accordance with NFPA 1123 which states, “The organization, office, or individual responsible for approving equipment, materials, an installation, or a procedure.” It is incumbent upon the event sponsor and or fireworks operator to consult with AHJ regarding fireworks display boundaries for restricted areas when seeking a fireworks permit. Under this arrangement the fireworks operator should provide a copy of the fireworks permit issued by the AHJ to the COTP to confirm compliance with local government regulations, ordinances and NFPA codes. The safety guidance provided in NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 702, dated June 18, 2002 sets forth Coast Guard policy used by USCG Captains of the Port; this document may be viewed in the docket.

Special Local Regulations

This rule adds 4 new special local regulations for marine events, removes 8 regulations and revises 18 previously established regulations for marine events listed in the Table to § 100.501. Other than changes to the dates and locations of certain events, the other provisions in 33 CFR 100.501 remain unchanged.

This rule provides additional information about regulated areas and the restrictions that apply to mariners and new terms including “Race Area”, “Spectator Area” and “Buffer Zone”. The 24 hour contact phone numbers are updated for Coast Guard Sectors Delaware Bay and North Carolina.

The Coast Guard revises regulations at 33 CFR 100.501 by adding 4 new special local regulations. The special local regulations are listed in Table 1, including reference by section as printed in the Table to § 100.501.

Table 1 [Special local regulated areas added to 33 CFR 100.501] Table to § 100.501 section Location 1. (b.) 22 Choptank River, Cambridge, MD. 2. (b.) 23 Breton Bay, Leonardtown, MD. 3. (b.) 24 Patapsco River, Baltimore, MD. 4. (d.) 1 Atlantic ICW, Lees Cut, Banks Channel, Motts Channel, surrounding Harbor Island, NC.

The Coast Guard amends regulations at 33 CFR 100.501 by disestablishing the following 8 special local regulated areas listed in Table 2.

Table 2 [Special local regulated areas removed from 33 CFR 100.501] Date(s) Event Regulated area 1. September—2nd, 3rd or 4th Friday, Saturday and Sunday; October—1st Friday, Saturday and Sunday Sunset Lake Hydrofest All waters of Sunset Lake, New Jersey, from shoreline to shoreline, south of latitude 38°58′32″ N. 2. October—2nd Saturday and Sunday The Liberty Grand Prix The waters of the Delaware River, adjacent to Philadelphia, PA and Camden, NJ, from shoreline to shoreline, bounded on the south by the Walt Whitman Bridge and bounded on the north by the Benjamin Franklin Bridge. 3. June—2nd, 3rd, 4th or last Saturday and Sunday or August—1st Saturday and Sunday Thunder on the Narrows All waters of Prospect Bay enclosed by the following points: Latitude 38°57′52″ N., longitude 076°14′48″ W., thence to latitude 38°58′02″ N., longitude 076°15′05″ W., thence to latitude 38°57′38″ N., longitude 076°15′29″ W., thence to latitude 38°57′28″ N., longitude 076°15′23″ W., thence to point of origin at latitude 38°57′52″ N., longitude 076°14′48″ W. 4. September—2nd, 3rd or 4th Friday, Saturday and Sunday. October—1st Friday, Saturday and Sunday Chesapeake Challenge/Solomons Offshore Grand Prix All waters of the Patuxent River, within boundary lines connecting the following positions; originating near north entrance of MD Route 4 bridge, latitude 38°19′45″ N., longitude 076°28′06″ W., thence southwest to south entrance of MD Route 4 bridge, latitude 38°19′24″ N., longitude 076°28′30″ W., thence south to a point near the shoreline, latitude 38°18′32″ N., longitude 076°28′14″ W., thence southeast to a point near the shoreline, latitude 38°17′38″ N., longitude 076°27′26″ W., thence northeast to latitude 38°18′00″ N., longitude 076°26′41″ W., thence northwest to latitude 38°18′59″ N., longitude 076°27′20″ W., located at Solomons, MD, thence continuing northwest and parallel to shoreline to point of origin. 5. June—3rd, 4th or last Sunday Coastal Aquatics Swim Team Open Water Summer Shore Swim All waters of the Nanticoke River, including Bivalve Channel and Bivalve Harbor, bounded by a line drawn from a point on the shoreline at latitude 38°18′00″ N., longitude 075°54′00″ W., thence westerly to latitude 38°18′00″ N., longitude 075°55′00″ W., thence northerly to latitude 38°20′00″ N., longitude 075°53′48″ W., thence easterly to latitude 38°19′42″ N., longitude 075°52′54″ W. 6. June—1st Saturday and Sunday Carolina Cup Regatta The specified waters of Pasquotank River near Elizabeth City, NC. 7. August—1st Friday, Saturday and Sunday SBIP—Fountain Powerboats Kilo Run and Super Boat Grand Prix The specified waters of the Pamlico River including Chocowinity Bay, NC. 8. September—3rd and or 4th or last Sunday Crystal Coast Grand Prix The specified waters of Bogue Sound, adjacent to Morehead City, NC.

This rule revises 18 preexisting special local regulations that involves change to marine event date(s) and/or coordinates. These events are listed in Table 3, with reference by section as printed in the Table to § 100.501.

Table 3 [Changes to special local regulation date(s) and coordinates] Table to § 100.501 section Location Revision
  • (date/coordinates)
  • 1. (a.) 4 N. Atlantic Ocean, Atlantic City, NJ coordinates. 2. (a.) 6 N. Atlantic Ocean, Seaside Heights—Normandy Beach, NJ coordinates. 3. (a.) 7 Manasquan River and N. Atlantic Ocean, Asbury Park—Seaside Park, NJ dates, coordinates. 4. (a.) 8 N. Atlantic Ocean, Atlantic City, NJ dates. 5. (a.) 12 New Jersey Intracoastal Waterway, near Atlantic City, NJ dates. 6. (b.) 1 Severn River, Annapolis, MD coordinates. 7. (b.) 2 Severn River, Annapolis, MD dates. 8. (b.) 7 Severn River, Annapolis, MD coordinates. 9. (b.) 10 Nanticoke River, Sharptown, MD coordinates. 10. (b.) 17 Spa Creek, Severn River, Annapolis, MD coordinates. 11. (b.) 18 Patuxent River, Solomons, MD dates. 12. (b.) 19 N. Atlantic Ocean, Ocean City, MD dates, coordinates. 13. (b.) 20 N. Atlantic Ocean, Ocean City, MD date, coordinates. 14. (c.) 1 Sunset Creek, Hampton River, Hampton, VA dates. 15. (c.) 4 Rappahannock River, Layton, VA coordinates. 16. (c.) 6 Mill Creek, Hampton, VA coordinates. 17. (c.) 8 Back River, Poquoson, VA dates, coordinates. 18. (c.) 9 Mattaponi River, Wakema, VA coordinates.

    Based on the nature of marine events, large number of participants and spectators, and event locations, the Coast Guard has determined that the events listed in this rule could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of injury or death resulting from near or actual contact among participant vessels and spectator vessels or mariners traversing through the regulated area. In order to protect the safety of all waterway users including event participants and spectators, this rule establishes special local regulations for the time and location of each marine event.

    This rule provides designated spectator areas for commercial small passenger vessels at certain marine event(s). The purpose of a commercial small passenger vessel spectator area is to ensure the safe operation of commercial vessels that carry a greater number of passengers onboard and operating within the widespread, high capacity spectator fleet at marine events. These spectator areas facilitate direct and unobstructed accesses for first responders should an emergency occur aboard one of the higher capacity commercial passenger vessels. Commercial passenger vessels holding a valid Certificate of Inspection issued under 46 CFR 114.110, and 175.110, (subchapter K or T vessels) are eligible for access to the designated spectator area as directed by the marine event Patrol Commander.

    Owners or operators of vessels that meet the requirements of subchapter K or T vessels may request access to the Severn River spectator area for the U.S. Naval Academy Blue Angels Air Show by contacting the City of Annapolis Harbormaster Office, at telephone (410) 263-7973 or email at [email protected] Application must be made no later than seven days prior to the date of the event. Applicants will be notified by the Captain of the Port or representative regarding status of applications generally the Friday before the date of the event.

    Owners or operators of vessels that meet the requirements of subchapter K or T vessels may request access to the Patapsco River spectator area for the Baltimore Air Show by contacting Sail Baltimore at telephone (410) 522-7300 or email at [email protected] Application must be made no later than ten days prior to the date of the event. Applicants will be notified by the Captain of the Port or representative regarding status of applications generally the Friday before the date of the event.

    This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the Captain of the Port (COTP), or designated Coast Guard Patrol Commander. The designated “Patrol Commander” includes Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP to act on their behalf. On-scene Patrol Commander may be augmented by local, State or Federal officials authorized to act in support of the Coast Guard.

    Safety Zones

    This rule adds 4 new safety zones, and revises 22 previously established safety zones listed in the Table to § 165.506. Other than changes to the dates and locations of certain safety zones, the other provisions in 33 CFR 165.506 remain unchanged.

    The Coast Guard revises the regulations at 33 CFR 165.506 by adding 4 new safety zone locations to the permanent regulations listed in this section. The new safety zones are listed in Table 4, including reference by section as printed in the Table to § 165.506.

    Table 4 [Safety zones added to 33 CFR 165.506] Table to § 165.506 section Location 1. (a.) 17 N. Atlantic Ocean, Sea Isle City, NJ. 2. (a.) 18 Rehoboth Bay, Dewey Beach, DE. 3. (b.) 27 Chester River, Kent Island Narrows, MD. 4. (b.) 28 Susquehanna River, Havre de Grace, MD.

    The rule revises 22 preexisting safety zones that involves change to event date(s) and coordinates. These revised safety zones are shown in Table 5, with reference by section as printed in the Table to § 165.506.

    Table 5 [Changes to safety zone date(s) and coordinates] Table to § 165.506 section Location Revision
  • (date/coordinates)
  • 1. (a.) 1 N. Atlantic Ocean, Bethany Beach, DE dates. 2. (a.) 3 N. Atlantic Ocean, Rehoboth Beach, DE dates. 3. (a.) 4 N. Atlantic Ocean, Avalon, NJ dates. 4. (a.) 5 Barnegat Bay, Barnegat Township, NJ dates. 5. (a.) 6 N. Atlantic Ocean, Cape May, NJ dates. 6. (a.) 7 Delaware Bay, North Cape May, NJ dates. 7. (a.) 8 Great Egg Harbor Inlet, Margate City, NJ dates. 8. (a.) 9 Metedeconk River, Brick Township, NJ dates. 9. (a.) 10 N. Atlantic Ocean, Atlantic City, NJ dates. 10. (a.) 11 N. Atlantic Ocean, Ocean City, NJ dates. 11. (a.) 13 Little Egg Harbor, Parker Island, NJ dates. 12. (a.) 16 Delaware River, Philadelphia, PA dates. 13. (b.) 2 Severn River and Spa Creek, Annapolis, MD coordinates. 14. (b.) 4 Upper Potomac River, Washington, DC dates/coordinates. 15. (b.) 5 Northwest Harbor (East Channel), Patapsco River, MD coordinates. 16. (b.) 12 Potomac River, Fairview Beach, Charles County, MD dates. 17. (b.) 16 Susquehanna River, Havre de Grace, MD dates. 18. (b.) 20 Upper Potomac River, Washington, DC dates. 19. (b.) 22 Potomac River, Prince William County, VA dates/coordinates. 20. (c.) 9 North Atlantic Ocean, Virginia Beach, VA (safety zone A) dates. 21. (c.) 18 Cape Charles Harbor, Cape Charles, VA dates. 22. (c.) 23 Elizabeth River Eastern Branch, Norfolk, VA dates.

    Each year, organizations in the Fifth Coast Guard District sponsor fireworks displays in the same general location and time period. Each event uses a barge or an on-shore site near the shoreline as the fireworks launch platform. A safety zone is used to control vessel movement within a specified distance surrounding the launch platforms to ensure the safety of persons and property. Coast Guard personnel on scene may allow boaters within the safety zone if conditions permit.

    The enforcement period for these safety zones is from 5:30 p.m. to 1 a.m. local time. However, vessels may enter, remain in, or transit through these safety zones during this time frame if authorized by the COTP or designated Coast Guard Patrol Commander on scene, as provided for in 33 CFR 165.23. This rule provides for the safety of life on navigable waters during the events. The regulatory text we are proposing appears at the end of this document.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the short amount of time that vessels will be restricted from regulated areas, and the small size of these areas that are usually positioned away from high vessel traffic zones. Generally vessels would not be precluded from getting underway, or mooring at any piers or marinas currently located in the vicinity of the regulated areas. Advance notifications would also be made to the local maritime community by issuance of Local Notice to Mariners, Broadcast Notice to Mariners, Marine information and facsimile broadcasts so mariners can adjust their plans accordingly. Notifications to the public for most events will typically be made by local newspapers, radio and TV stations. The Coast Guard anticipates that these special local regulated areas and safety zones will only be enforced one to three times per year.

    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 would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the regulated areas or safety zones may be small entities, for the reasons stated in section IV.A above this rule would not have a significant economic impact on any vessel owner or operator. However this rule will affect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in these regulated areas during the times the zones are enforced.

    These special local regulated areas and safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The Coast Guard will ensure that small entities are able to operate in the areas where events are occurring to the extent possible while ensuring the safety of event participants and spectators. The enforcement period will be short in duration and, in many of the areas, vessels can transit safely around the regulated area. Generally, blanket permission to enter, remain in, or transit through these regulated areas will be given, except during the period that the Coast Guard patrol vessel is present. Before the enforcement period, we will issue maritime advisories widely.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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. 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 would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

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

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 would 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 made a preliminary determination 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 implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States. Some marine events by their nature may introduce potential for adverse impact on the safety or other interest of waterway users or waterfront infrastructure within or close proximity to the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. This section of the rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are not required for this section of the rule.

    This rule involves implementation of regulations at 33 CFR part 165 that establish safety zones on navigable waters of the United States for fireworks events. These safety zones are enforced for the duration of fireworks display events. The fireworks are generally launched from or immediately adjacent to navigable waters of the United States. The category of activities includes fireworks launched from barges or at the shoreline that generally rely on the use of navigable waters as a safety buffer. Fireworks displays may introduce potential hazards such as accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. This section of the rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

    List of Subjects 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

    33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233.

    2. Revise section 100.501 to read as follows:
    § 100.501 Special Local Regulations; Marine Events within the Fifth Coast Guard District.

    The regulations in this section apply to the marine events listed in the Table to § 100.501. These regulations will be effective annually, for the duration of each event listed in the Table to § 100.501. Annual notice of the exact dates and times of the effective period of the regulation with respect to each event, the geographical area, and details concerning the nature of the event and the number of participants and type(s) of vessels involved will be published in Local Notices to Mariners and via Broadcast Notice to Mariners over VHF-FM marine band radio.

    (a) Definitions. The following definitions apply to this section:

    (1) Coast Guard Patrol Commander. A Patrol Commander (PATCOM) is a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the respective Coast Guard Sector—Captain of the Port to enforce these regulations.

    (2) Official Patrol means any vessel assigned or approved by the respective Captain of the Port with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

    (3) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.

    (4) Regulated area as used in this section means an area where Special local regulations apply to a specific described waterway to include creeks, sounds, bays, rivers and oceans. Regulated areas include all waters of a specific body of water described with intent to define boundaries where Coast Guard enforces Special local regulations. Boundaries may be described from shoreline to shoreline, reference bridges or other fixed structures, by points and lines defined by latitude and longitude. All coordinates reference Datum: NAD 1983.

    (b) Marine Event Patrol. The Coast Guard may assign a marine event patrol, as described in § 100.40 of this part, to each regulated event listed in the table. Additionally, a PATCOM may be assigned to oversee the patrol. The marine event patrol and PATCOM may be contacted on VHF-FM Channel 16. The PATCOM may terminate the event, or the operation of any vessel participating in the marine event, at any time if deemed necessary for the protection of life or property. Only designated marine event participants and their vessels and official patrol vessels are authorized to enter the regulated area.

    (c) Special local regulations—(1) Controls on vessel movement. The PATCOM or designated marine event patrol may forbid and control the movement of all vessels in the regulated area(s). When hailed or signaled by an official patrol vessel, a vessel in these areas shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    (2) Directions, instructions, and minimum speed necessary. The operator of any vessel in the regulated area shall:

    (i) Stop the vessel immediately when directed to do so by any Official Patrol and then proceed only as directed.

    (ii) All persons and vessels shall comply with the instructions of the Official Patrol.

    (iii) When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.

    (3) Race Area. This is an area described by a line bound by coordinates provided in latitude and longitude that outlines the boundary of a race area within the regulated area defined by this part. Only event sponsor designated participants or designated participating vessels and official patrol vessels are allowed to enter the race area. Persons or vessel operators may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the PATCOM on VHF-FM Channel 16.

    (4) Spectator Area. This is an area described by a line bound by coordinates provided in latitude and longitude that outlines the boundary of a spectator area within the regulated area defined by this part. Spectators are only allowed inside the regulated area if they remain within a designated spectator area. All spectator vessels shall be anchored or operate at a No Wake Speed within the designated spectator area. On scene designated PATCOM representatives will direct spectator vessels to the spectator area. Spectators may contact the PATCOM to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at safe speed and without loitering.

    (5) Buffer Area. This is a neutral zone that surrounds the perimeter of a Race Area or Marine Event Area within the regulated area described by this part. The purpose of a buffer zone is to minimize potential collision conflicts with marine event participants or race boats and spectator vessels or nearby transiting vessels. This zone provides separation between a Race Area or Marine Event Area and a specified Spectator Area or other vessels that are operating in the vicinity of the Special local regulated area for marine event.

    (6) Spectators. Spectators are only allowed inside the regulated area if they remain within a designated spectator area. Spectators may contact the PATCOM to request permission to either enter the Spectator Area or pass through the regulated area. If permission is granted, spectators may enter the Spectator Area or must pass directly through the regulated area as instructed by PATCOM at safe speed and without loitering.

    (d) Contact information. Questions about marine events should be addressed to the local Coast Guard Captain of the Port for the area in which the marine event is occurring. Contact information is listed below. For a description of the geographical area of each Coast Guard Sector—Captain of the Port zone, please see subpart 3.25 of this chapter.

    (1) Coast Guard Sector Delaware Bay—Captain of the Port Zone, Philadelphia, Pennsylvania: (215) 271-4940.

    (2) Coast Guard Sector Maryland-National Capital Region—Captain of the Port Zone, Baltimore, Maryland: (410) 576-2525.

    (3) Coast Guard Sector Hampton Roads—Captain of the Port Zone, Norfolk, Virginia: (757) 483-8567.

    (4) Coast Guard Sector North Carolina—Captain of the Port Zone North Carolina: (877) 229-0770 or (910) 362-4015.

    (e) Application for marine events. The application requirements of § 100.15 of this part apply to all marine events listed in the Table to § 100.501. For information on applying for a marine event permit, contact the Captain of the Port for the area in which the marine event will occur, at the phone numbers listed above.

    (f) Enforcement periods. The enforcement periods for each of the Special local regulations listed in the Table to § 100.501 of this section are subject to change, but the duration of enforcement would remain the same or nearly the same total amount of time as stated in its table. In the event of a change, or for enforcement periods listed that do not allow a specific date or dates to be determined, the Captain of the Port will provide notice by publishing a Notice of Enforcement in the Federal Register, as well as, issuing a Broadcast Notice to Mariners.

    (g) Regulations for specific marine events—(1) Marine event (b.) 7, U.S. Naval Academy Blue Angels Air Show. Severn River spectator area; except for a vessel in an emergency situation, a vessel may not anchor or maintain station within the spectator area described in TABLE TO 100.501 (b.) 7 without the permission of the Captain of the Port or designated PATCOM. The Captain of the Port has designated this spectator area for commercial small passenger vessel use. This area is closed except for commercial small passenger vessels holding a valid Certificate of Inspection regulated under 46 CFR subchapters K and T (46 CFR 114.110, and 175.110). Vessels that meet the requirements of this section may request access to the Severn River spectator area by contacting the City of Annapolis Harbormaster at (410) 263-7973 or email [email protected] to obtain a vessel spectator area application. Vessel spectator area applications shall be submitted no later than 7 calendar days prior to the event date. Applicants will be notified by the Captain of the Port or representative regarding status of applications and further instructions. All vessels shall contact the PATCOM on VHF-FM channels 16 or 22A prior to transiting to the spectator area to confirm entry approval. Vessels approved for spectator area access shall follow the instructions issued by the PATCOM when entering the regulated area. The regulations for this event will restrict access to the following Annapolis Harbor, MD, anchorage grounds listed in 33 CFR 110.159(a)(2) through (4): Middle Ground Anchorage, South Anchorage, and Naval Anchorage for Small Craft.

    (2) Marine event (b.) 23, Baltimore Air Show. Patapsco River spectator area; except for a vessel in an emergency situation, a vessel may not anchor or hold station within the spectator area described in TABLE TO 100.501 (b.) 23 without the permission of the Captain of the Port or designated PATCOM. The Captain of the Port has designated this spectator area for commercial small passenger vessel use. This area is closed except for commercial small passenger vessels holding a valid Certificate of Inspection regulated under 46 CFR subchapters K and T (46 CFR 114.110, and 175.110). Vessels that meet the requirements of this section may request access to the Patapsco River spectator area by contacting the Sail Baltimore at (410) 522-7300 or email [email protected] to obtain a vessel spectator area application. Vessel spectator area applications shall be submitted no later than 10 calendar days prior to the event date. Applicants will be notified by the Captain of the Port or representative regarding status of applications and further instructions. All vessels shall contact the PATCOM on VHF-FM channels 16 or 22A prior to transiting to the spectator area to confirm entry approval. Vessels approved for spectator area access shall follow the instructions issued by the PATCOM when entering the regulated area. The regulations for this event will restrict access to the following Baltimore Harbor, MD, anchorage grounds listed in 33 CFR 110.158(1)(1) through (4): Anchorage No. 1, general anchorage; Anchorage No. 2, general anchorage; Anchorage No. 3 Upper, general anchorage; and Anchorage No. 3 Lower, general anchorage.

    Table to § 100.501 [All coordinates listed in the Table to § 100.501 reference Datum NAD 1983] No. Enforcement
  • period(s) 1
  • Event Sponsor Location/Special local regulation area
    (a.) Coast Guard Sector Delaware Bay—COTP Zone 1 June—1st Sunday Atlantic County Day at the Bay Atlantic County, New Jersey The waters of Great Egg Harbor Bay, adjacent to Somers Point, New Jersey, bounded by a line drawn along the following boundaries: The area is bounded to the north by the shoreline along John F. Kennedy Park and Somers Point, New Jersey; bounded to the east by the State Route 52 bridge; bounded to the south by a line that runs along latitude 39°18′00″ N., and bounded to the west by a line that runs along longitude 074°37′00″ W. 2 May—3rd Sunday; September—3rd Saturday Annual Escape from Fort Delaware Triathlon Escape from Fort Delaware Triathlon, Inc All waters of the Delaware River between Pea Patch Island and Delaware City, Delaware, bounded by a line connecting the following points: Latitude 39°36′35.7″ N., longitude 075°35′25.6″ W., thence southeast to latitude 39°34′57.3″ N., longitude 075°33′23.1″ W., thence southwest to latitude 39°34′11.9″ N., longitude 075°34′28.6″ W., thence northwest to latitude 39°35′52.4″ N., longitude 075°36′33.9″ W., thence to point of origin. 3 June—last Saturday Westville Parade of Lights Borough of Westville and Westville Power Boat All waters of Big Timber Creek in Westville, New Jersey from shoreline to shoreline bounded on the south from the Route 130 Bridge and to the north by the entrance of the Delaware River. 4 June—4th Sunday OPA Atlantic City Grand Prix Offshore Performance Assn. (OPA) Regulated enforcement area—All waters of the North Atlantic Ocean encompassed within the following areas: Race area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 39°21′31″ N., longitude 074°24′45″ W., thence east to latitude 39°21′08″ N., longitude 074°24′32″ W., thence southwest to latitude 39°20′21.5″ N., longitude 074°27′04.6″ W., thence northwest to latitude 39°20′45.6″ N., longitude 074°27′11.6″ W., thence northeast parallel to shoreline to point of origin. Buffer area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 39°21′46″ N., longitude 074°24′35″ W., thence east to latitude 39°21′06″ N., longitude 074°24′06″ W., thence southwest to latitude 39°20′06″ N., longitude 074°27′20″ W., thence northwest to latitude 39°20′40.6″ N., longitude 074°27′31.5″ W., thence northeast along the shoreline to point of origin. Spectator area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 39°21′05.6″ N., longitude 074°24′05.8″ W., thence east to latitude 39°20′52.1″ N., longitude 074°23′53.9″ W., thence southeast to latitude 39°19′51.6″ N., longitude 074°27′16.2″ W., thence northwest to latitude 39°20′05.6″ N., longitude 074°27′20″ W., thence northeast to point of origin. 5 July—on or about July 4th U.S. holiday celebrations City of Philadelphia The waters of the Delaware River, adjacent to Philadelphia, PA and Camden, NJ, from shoreline to shoreline, bounded on the south by the Walt Whitman Bridge and bounded on the north by the Benjamin Franklin Bridge. 6 August—2nd Friday, Saturday and Sunday. Point Pleasant OPA/NJ Offshore Grand Prix Offshore Performance Association (OPA) and New Jersey Offshore Racing Assn Regulated enforcement area—All waters of the North Atlantic Ocean encompassed within the following areas:
  • Race area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 39°59′41″ N., longitude 074°03′20″ W., thence east to latitude 39°59′28″ N., longitude 074°02′15″ W., thence southwest to latitude 39°56′41″ N., longitude 074°02′55″ W., thence west to latitude 39°56′45″ N., longitude 074°03′52″ W., thence north parallel to shoreline to point of origin.
  • Buffer area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 40°00′00″ N., longitude 074°03′31″ W., thence east to latitude 39°59′41″ N., longitude 074°02′00″ W., thence southwest to latitude 39°56′28″ N., longitude 074°02′43″ W., thence west to latitude 39°56′31″ N., longitude 074°04′10″ W., thence north along the shoreline to point of origin. Spectator area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 39°59′41″ N., longitude 074°01′59″ W., thence east to latitude 39°59′39″ N., longitude 074°01′48″ W., thence southwest to latitude 39°56′27″ N., longitude 074°02′29″ W., thence west to latitude 39°56′28″ N., longitude 074°02′43″ W., thence north to point of origin. 7 May—3rd weekend, Saturday and Sunday New Jersey Offshore Grand Prix Offshore Performance Assn. & New Jersey Offshore Racing Assn Regulated enforcement area—All waters of the North Atlantic Ocean encompassed within the following areas:
  • Race area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 40°05′40″ N., longitude 074°01′59″ W., thence southeast to latitude 40°05′34″ N., longitude 074°01′40″ W., thence south to latitude 40°03′54″ N., longitude 074°02′07″ W., thence west to latitude 40°03′56″ N., longitude 074°02′24″ W., thence north and parallel to shoreline to point of origin.
  • Buffer area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 40°05′55″ N., longitude 074°02′02″ W., thence southeast to latitude 40°05′44″ N., longitude 074°01′28″ W., thence south to latitude 40°03′42″ N., longitude 074°02′01″ W., thence west to latitude 40°03′44″ N., longitude 074°02′36″ W., thence north along the shoreline to point of origin. Spectator area: All waters of the North Atlantic Ocean bounded by a line connecting the following points: Latitude 40°05′44″ N., longitude 074°01′27″ W., thence east to latitude 40°05′42″ N., longitude 074°01′20″ W., thence southwest to latitude 40°03′42″ N., longitude 074°01′55″ W., thence west to latitude 40°03′42″ N., longitude 074°02′01″ W., thence north to point of origin. 8 August—3rd Tuesday and Wednesday Thunder Over the Boardwalk Air show Atlantic City Chamber of Commerce The waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey, bounded by a line drawn between the following points: From a point along the shoreline at latitude 39°21′31″ N., longitude 074°25′04″ W., thence southeasterly to latitude 39°21′08″ N., longitude 074°24′48″ W., thence southwesterly to latitude 39°20′16″ N., longitude 074°27′17″ W., thence northwesterly to a point along the shoreline at latitude 39°20′44″ N., longitude 074°27′31″ W., thence northeasterly along the shoreline to latitude 39°21′31″ N., longitude 074°25′04″ W. 9 October—1st Monday (Columbus Day) U.S. holiday celebrations City of Philadelphia The waters of the Delaware River, adjacent to Philadelphia, PA and Camden, NJ, from shoreline to shoreline, bounded on the south by the Walt Whitman Bridge and bounded on the north by the Benjamin Franklin Bridge. 10 December 31st (New Year's Eve) U.S. holiday celebrations City of Philadelphia The waters of the Delaware River, adjacent to Philadelphia, PA and Camden, NJ, from shoreline to shoreline, bounded on the south by the Walt Whitman Bridge and bounded on the north by the Benjamin Franklin Bridge. 11 September—2nd, 3rd or 4th Sunday Ocean City Air Show Ocean City, NJ All waters of the New Jersey Intracoastal Waterway (ICW) bounded by a line connecting the following points: Latitude 39°15′57″ N., longitude 074°35′09″ W., thence northeast to latitude 39°16′34″ N., longitude 074°33′54″ W., thence southeast to latitude 39°16′17″ N., longitude 074°33′29″ W., thence southwest to latitude 39°15′40″ N., longitude 074°34′46″ W., thence northwest to point of origin, near Ocean City, NJ. 12 June—4th Sunday and August 2nd or 3rd Sunday. September—2nd or 3rd Saturday and Sunday Atlantic City International Triathlon Atlantic City, NJ All waters of the New Jersey Intracoastal Waterway (ICW) bounded by a line connecting the following points: Latitude 39°21′20″ N., longitude 074°27′18″ W., thence northeast to latitude 39°21′27.47″ N., longitude 074°27′10.31″ W., thence northeast to latitude 39°21′33″ N., longitude 074°26′57″ W., thence northwest to latitude 39°21′37″ N., longitude 074°27′03″ W., thence southwest to latitude 39°21′29.88″ N., longitude 074°27′14.31″ W., thence south to latitude 39°21′19″ N., longitude 074°27′22″ W., thence east to latitude 39°21′18.14″ N., longitude 074°27′19.25″ W., thence north to point of origin, near Atlantic City, NJ. (b.) Coast Guard Sector Maryland-National Capital Region—COTP Zone 1 March—4th or last Saturday; or April—1st Saturday USNA Safety at Sea Seminar U.S. Naval Academy All waters of the Severn River from shoreline to shoreline, bounded to the northwest by the Naval Academy (SR-450) Bridge and bounded to the southeast by a line drawn from Triton Light at latitude 38°58′53.0″ N., longitude 076°28′34.4″ W., thence easterly to Carr Point, MD at latitude 38°58′58.7″ N., longitude 076°27′38.9″ W. 2 April and May—every Friday, Saturday and Sunday USNA Crew Races U.S. Naval Academy All waters of the Severn River from shoreline to shoreline, bounded to the northwest by a line drawn from the south shoreline at latitude 39°00′58″ N., longitude 076°31′32″ W., thence to the north shoreline at latitude 39°01′11″ N., longitude 076°31′10″ W. The regulated area is bounded to the southeast by a line drawn from U.S. Naval Academy Light at latitude 38°58′39.5″ N., longitude 076°28′49″ W., thence easterly to Carr Point, MD at latitude 38°58′58″ N., longitude 076°27′41″ W. 3 July—3rd, 4th or last Saturday, or Sunday Middle River Dinghy Poker Run Norris Trust Foundation The waters of Middle River, from shoreline to shoreline, within an area bounded to the north by a line drawn along latitude 39°19′33″ N., and bounded to the south by a line drawn from latitude 39°17′24.4″ N., longitude 076°23′53.3″ W., thence east to latitude 39°18′06.4″ N., longitude 076°23′10.9″ W., including all western tributaries that join Middle River, including Dark Head Creek, Hopkins Creek, Norman Creek, Hogpen Creek and Sue Creek, located in Baltimore County, at Essex, MD. 4 May—1st Sunday Nanticoke River Swim and Triathlon Nanticoke River Swim and Triathlon, Inc All waters of the Nanticoke River, including Bivalve Channel and Bivalve Harbor, bounded by a line drawn from a point on the shoreline at latitude 38°18′38.8″ N., longitude 075°53′31.8″ W., thence westerly to latitude 38°18′39.8″ N., longitude 075°55′00″ W., thence northeasterly to latitude 38°19′57.7″ N., longitude 075°53′47.7″ W., thence easterly to latitude 38°19′42.3″ N., longitude 075°52′59.4″ W. 5 May— the Saturday before Memorial Day Chestertown Tea Party Re-enactment Chestertown Tea Party Festival All waters of the Chester River, within a line connecting the following positions: Latitude 39°12′27″ N., longitude 076°03′46″ W., thence to latitude 39°12′19″ N., longitude 076°03′53″ W., thence to latitude 39°12′15″ N., longitude 076°03′41″ W., thence to latitude 39°12′26″ N., longitude 076°03′38″ W., thence to the point of origin at latitude 39°12′27″ N., longitude 076°03′46″ W., located at Chestertown, MD. 6 May—3rd Friday, Saturday and Sunday. June 2nd or 3rd Friday, Saturday and Sunday Washington, DC Dragon Boat Festival Washington, DC Dragon Boat Festival, Inc The waters of the Upper Potomac River, Washington, DC, from shoreline to shoreline, bounded upstream by the Francis Scott Key Bridge and downstream by the Roosevelt Memorial Bridge, located at Georgetown, Washington, DC. 7 May—Tuesday and Wednesday before Memorial Day (observed) USNA Blue Angels Air Show U.S. Naval Academy All waters of the Severn River from shoreline to shoreline, bounded to the northwest by a line drawn along the U.S. 50 fixed highway bridge. The regulated area is bounded to the southeast by a line drawn from U.S. Naval Academy Light at latitude 38°58′39.5″ N., longitude 076°28′49″ W., thence southeast to a point 1500 yards ESE of Chinks Point, MD at latitude 38°57′41″ N., longitude 076°27′36″ W., thence northeast to Greenbury Point at latitude 38°58′27.7″ N., longitude 076°27′16.4″ W. Spectator area: All waters of the Severn River bounded by a line commencing at latitude 38°58′38.2″ N., longitude 076°27′56.9″ W., thence southeast to latitude 38°58′24.9″ N., longitude 076°27′47.6″ W., thence west to latitude 38°58′22.3″ N., longitude 076°27′54.5″ W., thence northwest to latitude 38°58′28.3″ N., longitude 076°28′11″ W., thence east to point of origin. This area is located generally in the center portion of Middle Ground Anchorage, Severn River, MD. This spectator area is restricted to certain vessels as described in § 100.501 paragraph (g)(1). 8 June—2nd Sunday The Great Chesapeake Bay Swim The Great Chesapeake Bay Swim, Inc The waters of the Chesapeake Bay between and adjacent to the spans of the William P. Lane Jr. Memorial Bridges from shoreline to shoreline, bounded to the north by a line drawn parallel and 500 yards north of the north bridge span that originates from the western shoreline at latitude 39°00′36.6″ N., longitude 076°23′55″ W., thence eastward to the eastern shoreline at latitude 38°59′14.2″ N., longitude 076°19′57.3″ W.; and bounded to the south by a line drawn parallel and 500 yards south of the south bridge span that originates from the western shoreline at latitude 39°00′18.4″ N., longitude 076°24′28.2″ W., thence eastward to the eastern shoreline at latitude 38°58′39.2″ N., longitude 076°20′8.8″ W. 9 June—3rd, 4th or last Saturday or July—2nd or 3rd Saturday Maryland Swim for Life District of Columbia Aquatics Club The waters of the Chester River from shoreline to shoreline, bounded on the south by a line drawn along latitude 39°10′16″ N., near the Chester River Channel Buoy 35 (LLN-26795) and bounded on the north at latitude 39°12′30″ N., parallel with Maryland S.R. 213 Highway Bridge. 10 June—last Saturday and Sunday or July—2nd Saturday and Sunday Bo Bowman Memorial—Sharptown Regatta Carolina Virginia Racing Assn Regulated enforcement area—All waters of the Nanticoke River encompassed within the following areas:
  • Race area: All waters of the Nanticoke River commencing at a point at latitude 38°33′02″ N., longitude 075°42′44″ W., thence northwest to latitude 38°33′03″ N., longitude 075°42′45″ W., thence southwest to latitude 38°32′46″ N., longitude 075°43′08″ W., thence southeast to latitude 38°32′45″ N., longitude 075°43′07″ W., thence northeast to the point of origin.
  • Race boat/participant access area: Located southwest and down river from the race area. From shoreline to shoreline and bound by a line commencing at latitude 38°32′37″ N., longitude 075°43′14″ W., thence northwest across the river to latitude 38°32′41.5″ N., longitude 075°43′19.3″ W., thence northeast to latitude 38°32′46″ N., longitude 075°43′14″ W., thence southeast along the Route 313 bridge to latitude 38°32′41.7″ N., longitude 075°43′08.2″ W., thence southwest to point of origin. Buffer area: All waters of the Nanticoke River bounded by a line connecting the following points: Commencing at latitude 38°33′02″ N., longitude 075°42′39″ W., thence southwest to latitude 38°32′42″ N., longitude 075°43′07″ W., thence northwest to latitude 38°32′47″ N., longitude 075°43′13″ W., thence northeast to latitude 38°33′07.5″ N., longitude 75°42′46″ W., thence southwest to the point of origin. Spectator area: All waters of the Nanticoke River bounded by the following points: Located northeast and up-river from the race area. From shoreline to shoreline and bound by a line commencing at latitude 38°33′08.5″ N., longitude 075°42′33.6″ W., thence southeasterly along the shoreline to latitude 38°33′02″ N., longitude 075°42′39″ W., thence across the river northwest to latitude 38°33′07.4″ N., longitude 075°42′46″ W., thence northeast along the shoreline to latitude 38°33′13″ N., longitude 075°42′41.5″ W., thence southeast across the river to point of origin. 11 May/June—Saturday and Sunday after Memorial Day (observed); and October—1st Saturday and Sunday Rock Hall and Waterman's Triathlon Swims Kinetic Endeavors, LLC The waters of Rock Hall Harbor from shoreline to shoreline, bounded by a line drawn from latitude 39°07′58.9″ N., longitude 076°15′02″ W., thence southeast and parallel along the harbor breakwall to latitude 39°07′50.1″ N., longitude 076°14′41.7″ W., located at Rock Hall, MD. 12 September—2nd Saturday or the Saturday after Labor Day. (biennial, even years) Catholic Charities Dragon Boat Races Associated Catholic Charities, Inc The waters of the Patapsco River, within the Inner Harbor, from shoreline to shoreline, bounded on the east by a line drawn along longitude 076°36′30″ W., located at Baltimore, MD. 13 June—3rd, 4th or last Saturday or Sunday Baltimore Dragon Boat Challenge Baltimore Dragon Boat Club The waters of Patapsco River, Northwest Harbor, in Baltimore, MD, from shoreline to shoreline, within an area bounded on the east by a line drawn along longitude 076°35′00″ W. and bounded on the west by a line drawn along longitude 076°36′42″ W. 14 May—2nd, 3rd, 4th or last Saturday or Sunday. June—1st, 2nd or 3rd Saturday or Sunday Oxford-Bellevue Sharkfest Swim Enviro-Sports Productions Inc The waters of the Tred Avon River from shoreline to shoreline, within an area bounded on the east by a line drawn from latitude 38°42′25″ N., longitude 076°10′45″ W., thence south to latitude 38°41′37″ N., longitude 076°10′26″ W., and bounded on the west by a line drawn from latitude 38°41′58″ N., longitude 076°11′04″ W., thence south to latitude 38°41′25″ N., longitude 076°10′49″ W., thence east to latitude 38°41′25″ N., longitude 076°10′30″ W., located at Oxford, MD. 15 June—1st Sunday Washington's Crossing: Swim Across the Potomac Wave One Swimming The waters of the Potomac River, from shoreline to shoreline, bounded to the north by a line drawn that originates at Jones Point Park, VA at the west shoreline latitude 38°47′35″ N., longitude 077°02′22″ W., thence east to latitude 38°47′12″ N., longitude 077°00′58″ W., at east shoreline near National Harbor, MD. The regulated area is bounded to the south by a line drawn originating at George Washington Memorial Parkway highway overpass and Cameron Run, west shoreline latitude 38°47′23″ N., longitude 077°03′03″ W., thence east to latitude 38°46′52″ N., longitude 077°01′13″ W., at east shoreline near National Harbor, MD. 16 October—last Saturday; or November—1st or 2nd Saturday The MRE Tug of War Maritime Republic of Eastport The waters of Spa Creek from shoreline to shoreline, extending 400 feet from either side of a rope spanning Spa Creek from a position at latitude 38°58′36″ N., longitude 076°29′04.7″ W. at Annapolis City Dock, thence to a position at latitude 38°58′25″ N., longitude 076°28′52.4″ W., at Eastport, MD shoreline, near the foot of 2nd Street. 17 December—2nd Saturday or Sunday Eastport Yacht Club Lights Parade Eastport Yacht Club All waters of Spa Creek and the Severn River, shoreline to shoreline, bounded on the east by a line drawn from Triton Light, at latitude 38°58′53.1″ N., longitude 076°28′34.3″ W., thence southwest to Horn Point, at 38°58′20.9″ N., longitude 076°28′27.1″ W., and bounded on the west by a line drawn along 076°30′00″ W., that crosses the western end of Spa Creek, at Annapolis, MD. 18 Memorial Day weekend—Thursday, Friday, Saturday and Sunday; or Labor Day weekend—Thursday, Friday, Saturday and Sunday; or October—last Thursday, Friday, Saturday and Sunday NAS Patuxent River Air Expo NAS Patuxent River All waters of lower Patuxent River, near Solomons, Maryland, located between Fishing Point and base of break wall marking the entrance to East Seaplane Basin at Naval Air Station Patuxent River (adjacent to approach for runway 14), within an area bounded by a line commencing near the shoreline at latitude 38°17′39″ N., longitude 076°25′47″ W., thence northwest to latitude 38°17′47″ N., longitude 076°26′00″ W., thence northeast to latitude 38°18′09″ N., longitude 076°25′40″ W., thence southeast to latitude 38°18′00″ N., longitude 076°25′25″ W., located near the shoreline at U.S. Naval Air Station Patuxent River, Maryland. All waters of Chesapeake Bay, located approximately 500 yards north of break wall marking entrance to Chesapeake Bay Basin, Naval Air Station Patuxent River (adjacent to approach for runway 32), within an area bounded by a line commencing near the shoreline at latitude 38°16′53.9″ N., longitude 076°23′29.2″ W., thence southeast to latitude 38°16′40″ N., longitude 076°23′05″ W., thence southwest to latitude 38°16′19″ N., longitude 076°23′25″ W., thence northwest to latitude 38°16′30.4″ N., longitude 076°23′44.9″ W., located near the shoreline at U.S. Naval Air Station Patuxent River, Maryland. All waters of lower Patuxent River, near Solomons, Maryland, located between Hog Point and Cedar Point, located approximately 200 yards north of shoreline at Naval Air Station Patuxent River, Maryland. The area is bound by a line drawn from point commencing at latitude 38°18′41″ N., longitude 076°23′43″ W., thence east to latitude 38°18′16″ N., longitude 076°22′35″ W., thence south to latitude 38°18′12″ N., longitude 076°22′37″ W., thence northwest to latitude 38°18′36″ N., longitude 076°23′46″ W., thence to point of origin. 19 May—1st or 2nd Saturday and Sunday; October—1st or 2nd Saturday and Sunday Ocean City Maryland Offshore Grand Prix Offshore Performance Assn. Racing, LLC Regulated enforcement area: All waters of North Atlantic Ocean bounded within the following designated areas.
  • Race area: All waters of North Atlantic Ocean commencing at latitude 38°20′06.33″ N., longitude 075°04′39.09″ W., thence east to latitude 38°20′03.75″ N., longitude 075°04′27.46″ W., thence north and parallel to Ocean City shoreline to latitude 38°21′32″ N., longitude 075°03′46.57″ W., thence west to shoreline at latitude 38°21′34.58″ N., longitude 075°04′00.95″ W., thence south to the point of origin.
  • Buffer area: 500 yards in all directions surrounding the “Race area”. All waters of North Atlantic Ocean commencing at a point near the shoreline at latitude 38°21′52″ N., longitude 075°04′09″ W., thence east to latitude 38°21′44″ N., longitude 075°03′21″ W., thence southwest and parallel to Ocean City shoreline latitude 38°19′47″ N., longitude 075°04′15″ W., thence west to the shoreline at latitude 38°19′55″ N., longitude 075°04′57″ W. Spectator area: Vessel operation restricted to operate at No Wake Speed. All waters of North Atlantic Ocean commencing at latitude 38°20′01″ N., longitude 075°04′08.4″ W., thence east to latitude 38°19′58″ N., longitude 075°03′57″ W., thence north and parallel to Ocean City shoreline to latitude 38°21′26″ N., longitude 075°03′16″ W., thence west to shoreline at latitude 38°21′29″ N., longitude 075°03′27.8″ W., thence south to the point of origin. 20 June—1st, 2nd or 3rd Thursday, Friday, Saturday and Sunday Ocean City Air Show Town of Ocean City, Maryland All waters of the North Atlantic Ocean within an area bounded by the following coordinates: Commencing at a point near the shoreline in vicinity of 33rd Street, Ocean City, MD, latitude 38°21′48.8″ N., longitude 075°04′10″ W., thence eastward to latitude 38°21′32″ N., longitude 075°03′12″ W., thence south to latitude 38°19′22.7″ N., longitude 075°04′09.5″ W., thence west to latitude 38°19′38.5″ N., longitude 075°05′05.4″ W., thence north along the shoreline to point of origin, located adjacent to Ocean City, MD. 21 Memorial Day weekend (Saturday and Sunday). July—last Saturday or Sunday Cambridge Classic Powerboat Race Cambridge Power Boat Regatta Association Regulated enforcement area: All waters within Hambrooks Bay and Choptank River west and south of a line commencing at Great Marsh Point, latitude 38°35′06″ N., longitude 076°04′40.5″ W., thence northeast to latitude 38°35′22.7″ N., longitude 076°04′23.7″ W., thence northwest to latitude 38°35′42.2″ N., longitude 076°04′51.1″ W. at Hambrooks Bar Light LLNR 24995, thence southwest to latitude 38°35′34.2″ N., longitude 076°05′12.3″ W., terminating at the Hambrooks Bay breakwall as it intersects the shoreline. Race area: Located within the waters of Hambrooks Bay and Choptank River, in an area bound to the north by the Hambrooks Bay breakwall and bounded to the east by a line drawn along longitude 076°04′42″ W. The actual placement of the Race Area will be determined by the marine event sponsor within the designated boundaries described in this section. Buffer area: All waters within Hambrooks Bay and Choptank River (with the exception of the Race Area designated by the marine event sponsor) bound to the north by the breakwall and continuing along a line drawn from the east end of breakwall located at latitude 38°35′27.6″ N., longitude 076°04′50.1″ W., thence east to latitude 38°35′22.7″ N., longitude 076°04′23.7″ W., thence southwest to Great Marsh Point located at latitude 38°35′06″ N., longitude 076°04′40.6″ W. Spectator area: All waters of the Choptank River, eastward and outside of Hambrooks Bay breakwall, thence bound by line that commences at latitude 38°35′25″ N., longitude 076°04′51″ W., thence east to latitude 38°35′22″ N., longitude 076°04′36″ W., thence southeast to latitude 38°35′19″ N. longitude 076°04′33″ W., thence northeast to latitude 38°35′22.7″ N. longitude 076°04′23.7″ W. 22 July—4th or last Saturday and Sunday Southern Maryland Boat Club Summer Regatta Southern Maryland Boat Club All waters of Breton Bay, immediately adjacent to Leonardtown, MD shoreline, from shoreline to shoreline, within an area bounded to the east by a line drawn along latitude 38°16′43″ N., and bounded to the west by a line drawn along longitude 076°38′29.5″ W., located at Leonardtown, MD. Race area: The race area is rectangular in shape measuring approximately 200 yards by 870 yards. The area is bounded by a line commencing at position latitude 38°17′07.2″ N., longitude 076°38′17.3″ W., thence southeast to latitude 38°16′55.3″ N., longitude 076°37′48″ W., thence southwest to latitude 38°16′50.1″ N., longitude 076°37′51.3″ W., thence northwest to latitude 38°17′01.9″ N., longitude 076°38′21″ W., thence northeast to point of origin. Buffer area: The area surrounds the entire race area described in the preceding paragraph of this section. This area is rectangular in shape and provides a buffer of approximately 125 yards around the perimeter of the race area. The area is bounded by a line commencing at position latitude 38°17′12″ N., longitude 076°38′19.6″ W., thence southeast to latitude 38°16′57″ N., longitude 076°37′40.5″ W., thence southwest to latitude 38°16′44.8″ N., longitude 076°37′48.2″ W., thence northwest to latitude 38°17′00.2″ N., longitude 076°38′27.8″ W., thence northeast to point of origin. Spectator area: A. The area is bounded by a line commencing at position latitude 38°16′52.1″ N., longitude 076°38′14.2″ W., thence northeast to latitude 38°16′54″ N., longitude 076°38′12.5″ W., thence southeast to latitude 38°16′48.6″ N., longitude 076°37′59.3″ W., thence southwest to latitude 38°16′47.4″ N., longitude 076°37′59.3″ W., thence northwest along the shoreline to point of origin. B. The area is bounded by a line commencing at position latitude 38°16′59.1″ N., longitude 076°37′45.6″ W., thence southeast to latitude 38°16′57.1″ N., longitude 076°37′40.2″ W., thence southwest to latitude 38°16′54.3″ N., longitude 076°37′41.9″ W., thence southeast to latitude 38°16′51.8″ N., longitude 076°37′36.4″ W., thence northeast to latitude 38°16′55.2″ N., longitude 076°37′34.2″ W., thence northwest to latitude 38°16′59.2″ N., longitude 076°37′37.2″ W., thence west to latitude 38°17′01.7″ N., longitude 076°37′43.7″ W., thence south to point of origin. C. The area is bounded by a line commencing at position latitude 38°16′47.2″ N., longitude 076°37′54.8″ W., thence south to latitude 38°16′43.3″ N., longitude 076°37′55.2″ W., thence east to latitude 38°16′43.2″ N., longitude 076°37′47.8″ W., thence north to latitude 38°16′44.7″ N., longitude 076°37′48.5″ W., thence northwest to point of origin. 23 October —Thursday, Friday, Saturday and Sunday after Columbus Day (observed). (biennial, even years) Baltimore Air Show Historic Ships in Baltimore, Inc Regulated area: All waters of the Patapsco River, within an area bounded by a line connecting position latitude 39°16′00″ N., longitude 076°36′30″ W., thence east to latitude 39°16′00″ N., longitude 076°33′00″ W., thence south to latitude 39°14′30″ N., longitude 076°33′00″ W., thence west to latitude 39°14′30″ N., longitude 076°36′30″ W., thence north to point of origin, located between Port Covington and Seagirt Marine Terminal, Baltimore, MD. Spectator Area: All waters of Patapsco River located between the northern boundary defined by a line drawn from the vicinity of North Locust Point Marine Terminal, Pier 1 thence east to Canton Industrial area, Pier 5; the south boundary is defined by a line drawn from vicinity of Whetstone Point thence east to Lazaretto Point. This area is located generally where Northwest Harbor, East Channel joins Patapsco River, Fort McHenry Channel, near Fort McHenry National Monument, Baltimore, MD. This area is bound by a line to the north commencing at position latitude 39°16′01″ N., longitude 076°34′46″ W., thence east to latitude 39°16′01″ N., longitude 076°34′09″ W., and bound by a line to the south commencing at position latitude 39°15′39″ N., longitude 076°35′23″ W., thence east to latitude 39°15′26″ N., longitude 076°34′03″ W. This spectator area is restricted to certain vessels as described in § 100.501 paragraph (g)(2). (c.) Coast Guard Sector Hampton Roads—COTP Zone 1 May—last Friday, Saturday and Sunday and/or June—1st Friday, Saturday and Sunday
  • October—3rd and 4th weekend
  • Blackbeard Festival, Battle of Hampton City of Hampton The waters of Sunset Creek and Hampton River shoreline to shoreline bounded to the north by the I-64 Bridge over the Hampton River and bounded to the south by a line drawn from Hampton River Channel Light 16 (LL 10945), located at latitude 37°01′03″ N., longitude 076°20′24″ W., thence west across the Hampton River to finger pier at Bluewater Yacht Center, located at latitude 37°01′03″ N., longitude 076°20′28″ W.
    Spectator Vessel Anchorage Areas—Area A: Located in the upper reaches of the Hampton River, bounded to the south by a line drawn from the western shoreline at latitude 37°01′46.6″ N., longitude 076°20′21.3″ W., thence east across the river to latitude 37°01′42.6″ N., longitude 076°20′12.3″ W., and bounded to the north by the I-64 Bridge over the Hampton River. The anchorage area will be marked by orange buoys. Area B: Located along the eastern side of the Hampton River channel, south of the route 60/143 bridge and Joy's Marina, and adjacent to the shoreline that fronts the Riverside Health Center. Bounded by the shoreline and a line drawn between the following points: Latitude 37°01′27.6″ N., longitude 076°20′23.1″ W., thence south to latitude 37°01′22.9″ N., longitude 076°20′26.1″ W. The anchorage area will be marked by orange buoys. 2 June—1st Friday, Saturday and Sunday or 2nd Friday, Saturday and Sunday Norfolk Harborfest Norfolk Festevents, Ltd The waters of the Elizabeth River and its branches from shoreline to shoreline, bounded to the northwest by a line drawn across the Port Norfolk Reach section of the Elizabeth River between the north corner of the landing at Hospital Point, Portsmouth, Virginia, latitude 36°50′51.6″ N., longitude 076°18′07.9″ W., and the north corner of the City of Norfolk Mooring Pier at the foot of Brooks Avenue located at latitude 36°51′00.3″ N., longitude 076°17′51″ W.; bounded on the southwest by a line drawn from the southern corner of the landing at Hospital Point, Portsmouth, Virginia, at latitude 36°50′50.9″ N., longitude 076°18′07.7″ W., to the northern end of the eastern most pier at the Tidewater Yacht Agency Marina, located at latitude 36°50′33.6″ N., longitude 076°17′54.1″ W.; bounded to the south by a line drawn across the Lower Reach of the Southern Branch of the Elizabeth River, between the Portsmouth Lightship Museum located at the foot of London Boulevard, in Portsmouth, Virginia at latitude 36°50′13.2″ N., longitude 076°17′44.8″ W., and the northwest corner of the Norfolk Shipbuilding & Drydock, Berkley Plant, Pier No. 1, located at latitude 36°50′08.8″ N., longitude 076°17′37.5″ W.; and to the southeast by the Berkley Bridge which crosses the Eastern Branch of the Elizabeth River between Berkley at latitude 36°50′21.5″ N., longitude 076°17′14.5″ W., and Norfolk at latitude 36°50′35″ N., longitude 076°17′10″ W. 3 June—2nd or 3rd Saturday Cock Island Race Portsmouth Boat Club & City of Portsmouth, VA The waters of the Elizabeth River and its branches from shoreline to shoreline, bounded to the northwest by a line drawn across the Port Norfolk Reach section of the Elizabeth River between the northern corner of the landing at Hospital Point, Portsmouth, Virginia, latitude 36°50′51.6″ N., longitude 076°18′07.9″ W. and the north corner of the City of Norfolk Mooring Pier at the foot of Brooks Avenue located at latitude 36°51′00.3″ N., longitude 076°17′51″ W.; bounded on the southwest by a line drawn from the southern corner of the landing at Hospital Point, Portsmouth, Virginia, at latitude 36°50′50.9″ N., longitude 076°18′07.7″ W., to the northern end of the eastern most pier at the Tidewater Yacht Agency Marina, located at latitude 36°50′33.6″ N., longitude 076°17′54.1″ W.; bounded to the south by a line drawn across the Lower Reach of the Southern Branch of the Elizabeth River, between the Portsmouth Lightship Museum located at the foot of London Boulevard, in Portsmouth, Virginia at latitude 36°50′13.2″ N., longitude 076°17′44.8″ W., and the northwest corner of the Norfolk Shipbuilding & Drydock, Berkley Plant, Pier No. 1, located at latitude 36°50′08.8″ N., longitude 076°17′37.5″ W.; and bounded to the southeast by the Berkley Bridge which crosses the Eastern Branch of the Elizabeth River between Berkley at latitude 36°50′21.5″ N., longitude 076°17′14.5″ W., and Norfolk at latitude 36°50′35″ N., longitude 076°17′10″ W. 4 June—last Saturday or July—1st Saturday RRBA Spring Radar Shootout Rappahannock River Boaters Association (RRBA) All waters of Rappahannock River, adjacent to Layton, VA, from shoreline to shoreline, bounded on the west by a line running along longitude 076°58′30″ W., and bounded on the east by a line running along longitude 076°56′00″ W. Buffer area: The waters of Rappahannock River extending 200 yards outwards from east and west boundary lines described in this section. Spectator area: The regulated area cannot accommodate spectator vessels due to limitations posed by shallow water and insufficient waters to provide adequate separation between race course and other vessels. Spectators are encouraged to view the race from points along the adjacent shoreline. 5 July—last Wednesday and following Friday; or August—1st Wednesday and following Friday Pony Penning Swim Chincoteague Volunteer Fire Department The waters of Assateague Channel from shoreline to shoreline, bounded to the east by a line drawn from latitude 37°55′01″ N., longitude 075°22′40″ W., thence south to latitude 37°54′50″ N., longitude 075°22′46″ W.; and to the southwest by a line drawn from latitude 37°54′54″ N., longitude 075°23′00″ W., thence east to latitude 37°54′49″ N., longitude 075°22′49″ W. 6 August 1st or 2nd Friday, Saturday and Sunday Hampton Cup Regatta Hampton Cup Regatta Boat Club Regulated enforcement area—All waters of Mill Creek, adjacent and north of Fort Monroe, Hampton, Virginia. The regulated area includes the following areas: Race area: All waters within the following boundaries: to the north, a line drawn along latitude 37°01′03″ N., to the east a line drawn along longitude 076°18′30″ W., to the south a line drawn parallel with the Fort Monroe shoreline, and west boundary is parallel with the Route 258—East Mercury Boulevard Bridge-causeway. Buffer area A: All waters bounded by a line connecting the following points: latitude 37°00′43″ N., longitude 076°18′54″ W., thence north along the causeway to latitude 37°01′03″ N., longitude 076°18′52″ W., thence southwest to latitude 37°01′00″ N., longitude 076°18′54″ W., thence south to Route 143 causeway at latitude 37°00′44″ N., longitude 076°18′58″ W., thence east along the shoreline to point of origin. Buffer area B: All waters bounded by a line connecting the following points: Latitude 37°01′08″ N., longitude 076°18′49″ W., thence east to latitude 37°01′08″ N., longitude 076°18′23″ W., thence south to latitude 37°00′33″ N., longitude 076°18′23″ W., thence west to latitude 37°00′33″ N., longitude 076°18′30″ W., thence north to latitude 37°01′03″ N., longitude 076°18′30″ W., thence west to latitude 37°01′03″ N., longitude 076°18′49″ W., thence north to point of origin. Spectator area: All waters bounded by a line connecting the following points: Latitude 37°01′08″ N., longitude 076°18′23″ W., thence east to latitude 37°01′08″ N., longitude 076°18′14″ W., thence south to latitude 37°00′54″ N., longitude 076°18′14″ W., thence southwest to latitude 37°00′37″ N., longitude 076°18′23″ W., thence north to point of origin. 7 September 1st Friday, Saturday and Sunday or 2nd Friday, Saturday and Sunday Hampton Virginia Bay Days Festival Hampton Bay Days Inc The waters of Sunset Creek and Hampton River shoreline to shoreline bounded to the north by the I-64 Bridge over the Hampton River and bounded to the south by a line drawn from Hampton River Channel Light 16 (LL 10945), located at latitude 37°01′03″ N., longitude 076°20′24″ W., thence west to the finger pier across the river at Bluewater Yacht Center, located at latitude 37°01′03″ N., longitude 076°20′28″ W. 8 September—last Sunday or October—1st or 2nd Sunday Poquoson Seafood Festival Workboat Races City of Poquoson The waters of the Back River, Poquoson, Virginia. Race area: The area is bounded on the north by a line drawn along latitude 37°06′30″ N., bounded on the south by a line drawn along latitude 37°06′15″ N., bounded on the east by a line drawn along longitude 076°18′52″ W. and bounded on the west by a line drawn along longitude 076°19′30″ W. Buffer area: The waters of Back River extending 200 yards outwards from east and west boundary lines, and 100 yards outwards from the north and south boundary lines described in this section. Spectator area: Is located along the south boundary line of the buffer area described in this section and continues to the south for 300 yards. 9 June—3rd Saturday and Sunday or 4th Saturday and Sunday Mattaponi Drag Boat Race Mattaponi Volunteer Rescue Squad and Dive Team All waters of Mattaponi River immediately adjacent to Rainbow Acres Campground, King and Queen County, Virginia. The regulated area includes a section of the Mattaponi River approximately three-quarter mile long and bounded in width by each shoreline, bounded to the east by a line that runs parallel along longitude 076°52′43″ W., near the mouth of Mitchell Hill Creek, and bounded to the west by a line that runs parallel along longitude 076°53′41″ W. just north of Wakema, Virginia. Buffer area: The waters of Mattaponi River extending 200 yards outwards from east and west boundary lines described in this section. Spectator area: The regulated area cannot accommodate spectator vessels due to limitations posed by shallow water and insufficient waters to provide adequate separation between race course and other vessels. Spectators are encouraged to view the race from points along the adjacent shoreline. (d.) Coast Guard Sector North Carolina—COTP Zone 1 September—4th or last Saturday and or Sunday Swim the Loop and Motts Channel Sprint Without Limits Coaching, Inc All waters surrounding Harbor Island, NC including Intracoastal waterway, Lees Cut, Banks Channel and Motts Channel. Enforcement area extends approximately 100 yards from the shoreline of Harbor Island and is bounded by a line connecting the following points: Latitude 34°12′55″ N., longitude 077°48′59″ W., thence northeast to latitude 34°13′16″ N., longitude 077°48′39″ W., thence southeast to latitude 34°13′06″ N., longitude 077°48′18″ W., thence east to latitude 34°13′12″ N., longitude 077°47′41″ W., thence southeast to latitude 34°13′06″ N., longitude 077°47′33″ W., thence south to latitude 34°12′31″ N., longitude 077°47′47″ W., thence southwest to latitude 34°12′11″ N., longitude 077°48′01″ W., thence northwest to latitude 34°12′29″ N., longitude 077°48′29″ W., thence north to latitude 34°12′44″ N., longitude 077°48′32″ W., thence northwest to point of origin. 2 September—3rd, 4th or last Saturday; October—last Saturday; November—1st and or 2nd Saturday Wilmington YMCA Triathlon Wilmington, NC, YMCA All waters of Motts Channel, from shoreline to shoreline and between Wrightsville Channel Day beacon 14 (LLNR 30220), located at latitude 34°12′17.8″ N., longitude 077°48′09.1″ W., thence westward to Wrightsville Channel Day beacon 25 (LLNR 30255), located at latitude 34°12′52.1″ N., longitude 077°48′53.5″ W. 3 August—2nd Saturday The Crossing Organization to Support the Arts, Infrastructure, and Learning on Lake Gaston, AKA O'SAIL All waters of Lake Gaston, from shoreline to shoreline, directly under the length of Eaton Ferry Bridge (NC State Route 903), commencing at the southern bridge entrance at latitude 36°30′38″ N., longitude 077°57′53″ W., and extending to the northern bridge entrance at latitude 36°31′19″ N., longitude 077°57′33″ W., and bounded to the west by a line drawn parallel and 100 yards from and the western side of Eaton Ferry Bridge near Littleton, NC. 1 As noted in paragraph (f) of this section, the enforcement period for each of the listed special local regulations is subject to change.
    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 3. 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, 160.5; Department of Homeland Security Delegation No. 0170.1.

    4. Revise section 165.506 to read as follows:
    § 165.506 Safety Zones; Fireworks Displays in the Fifth Coast Guard District.

    (a) Regulations. (1) The general regulations contained in 33 CFR 165.23 and the regulations in this section apply to the fireworks safety zones listed in the Table to § 165.506. These regulations will be enforced annually, for the duration of each fireworks event listed in the Table to § 165.506. In the case of inclement weather, the event may be conducted on the day following the date listed in the Table to § 165.506. Annual notice of the exact dates and times of the enforcement period of the regulation with respect to each safety zone, the geographical area, and other details concerning the nature of the fireworks event will be published in Local Notices to Mariners and via Broadcast Notice to Mariners over VHF-FM marine band radio.

    (2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, Coast Guard Patrol Commander or the designated on-scene-patrol personnel. Those personnel are comprised of commissioned, warrant, and petty officers of the U.S. Coast Guard. Other Federal, State and local agencies may assist these personnel in the enforcement of the safety zone. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

    (b) Notification. (1) Fireworks barges and launch sites on land that operate within the regulated areas contained in the Table to § 165.506 will have a sign affixed to the port and starboard side of the barge or mounted on a post 3 feet above ground level when on land immediately adjacent to the shoreline and facing the water labeled “FIREWORKS—DANGER—STAY AWAY”. This will provide on scene notice that the safety zone will be enforced on that day. This notice will consist of a diamond shaped sign 4 feet by 4 feet with a 3-inch orange retro reflective border. The word “DANGER” shall be 10 inch black block letters centered on the sign with the words “FIREWORKS” and “STAY AWAY” in 6 inch black block letters placed above and below the word “DANGER” respectively on a white background.

    (2) Coast Guard Captains of the Port in the Fifth Coast Guard District will notify the public of the enforcement of these safety zones by all appropriate means to affect the widest publicity among the affected segments of the public. Publication in the Local Notice to Mariners, marine information broadcasts, and facsimile broadcasts may be made for these events, beginning 24 to 48 hours before the event is scheduled to begin, to notify the public.

    (c) Contact information. Questions about safety zones and related events should be addressed to the local Coast Guard Captain of the Port for the area in which the event is occurring. Contact information is listed below. For a description of the geographical area of each Coast Guard Sector—Captain of the Port zone, please see 33 CFR 3.25.

    (1) Coast Guard Sector Delaware Bay—Captain of the Port Zone, Philadelphia, Pennsylvania: (215) 271-4940.

    (2) Coast Guard Sector Maryland-National Capital Region—Captain of the Port Zone, Baltimore, Maryland: (410) 576-2525.

    (3) Coast Guard Sector Hampton Roads—Captain of the Port Zone, Norfolk, Virginia: (757) 483-8567.

    (4) Coast Guard Sector North Carolina—Captain of the Port Zone, Wilmington, North Carolina: (877) 229-0770 or (910) 362-4015.

    (d) Enforcement periods. The safety zones in the Table to § 165.506 will be enforced from 5:30 p.m. to 1 a.m. each day a barge with a “FIREWORKS—DANGER—STAY AWAY” sign on the port and starboard side is on-scene or a “FIREWORKS—DANGER—STAY AWAY” sign is posted on land adjacent to the shoreline, in a location listed in the Table to § 165.506. Vessels may not enter, remain in, or transit through the safety zones during these enforcement periods unless authorized by the Captain of the Port or designated Coast Guard patrol personnel on scene. The enforcement periods for each Safety Zone in the Table to § 165.506 of this section are subject to change, but the duration of enforcement would remain the same or nearly the same total amount of time as stated in its table. In the event of a change, or for enforcement periods listed that do not allow a specific date or dates to be determined, the Captain of the Port will provide notice by publishing a Notice of Enforcement in the Federal Register, as well as, issuing a Broadcast Notice to Mariners.

    Table To § 165.506 [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.] Number Enforcement period(s) 1 Location Safety zone—regulated area (a.) Coast Guard Sector Delaware Bay—COTP Zone 1 July 2nd, 3rd, 4th or 5th North Atlantic Ocean, Bethany Beach, DE; Safety Zone The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 38°32′08″ N., longitude 075°03′15″ W., adjacent to shoreline of Bethany Beach, DE. 2 Labor Day Indian River Bay, DE; Safety Zone All waters of the Indian River Bay within a 700 yard radius of the fireworks launch location on the pier in approximate position latitude 38°36′42″ N., longitude 075°08′18″ W. 3 July 2nd, 3rd or 4th North Atlantic Ocean, Rehoboth Beach, DE; Safety Zone All waters of the North Atlantic Ocean within a 360 yard radius of the fireworks barge in approximate position latitude 38°43′01.2″ N., longitude 075°04′21″ W., approximately 400 yards east of Rehoboth Beach, DE. 4 July 2nd, 3rd, 4th or 5th North Atlantic Ocean, Avalon, NJ; Safety Zone The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate location latitude 39°06′19.5″ N., longitude 074°42′02.15″ W., in the vicinity of the shoreline at Avalon, NJ. 5 July 2nd, 3rd, or 4th, or September 1st-2nd Saturday Barnegat Bay, Barnegat Township, NJ; Safety Zone The waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position latitude 39°44′50″ N., longitude 074°11′21″ W., approximately 500 yards north of Conklin Island, NJ. 6 July 2nd, 3rd, 4th or 5th North Atlantic Ocean, Cape May, NJ; Safety Zone The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate location latitude 38°55′36″ N., longitude 074°55′26″ W., immediately adjacent to the shoreline at Cape May, NJ. 7 July 2nd, 3rd, 4th or 5th Delaware Bay, North Cape May, NJ; Safety Zone All waters of the Delaware Bay within a 360 yard radius of the fireworks barge in approximate position latitude 38°58′00″ N., longitude 074°58′30″ W. 8 July 2nd, 3rd, 4th or 5th. August—3rd Sunday Great Egg Harbor Inlet, Margate City, NJ; Safety Zone All waters within a 500 yard radius of the fireworks barge in approximate location latitude 39°19′33″ N., longitude 074°31′28″ W., on the Intracoastal Waterway near Margate City, NJ. 9 July 2nd, 3rd, 4th or 5th. August every Thursday; September 1st Thursday Metedeconk River, Brick Township, NJ; Safety Zone The waters of the Metedeconk River within a 300 yard radius of the fireworks launch platform in approximate position latitude 40°03′24″ N., longitude 074°06′42″ W., near the shoreline at Brick Township, NJ. 10 July—2nd, 3rd, 4th or 5th North Atlantic Ocean, Atlantic City, NJ; Safety Zone The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge located at latitude 39°20′58″ N., longitude 074°25′58″ W., and within 500 yard radius of a fireworks barge located at latitude 39°21′2″ N., longitude 074°25′06″ W., near the shoreline at Atlantic City, NJ. 11 July 2nd, 3rd, 4th or 5th. October—1st or 2nd Saturday North Atlantic Ocean, Ocean City, NJ; Safety Zone The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate location latitude 39°16′22″ N., longitude 074°33′54″ W., in the vicinity of the shoreline at Ocean City, NJ. 12 May—4th Saturday Barnegat Bay, Ocean Township, NJ; Safety Zone All waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position latitude 39°47′33″ N., longitude 074°10′46″ W. 13 July 2nd, 3rd, 4th or 5th Little Egg Harbor, Parker Island, NJ; Safety Zone All waters of Little Egg Harbor within a 500 yard radius of the fireworks barge in approximate position latitude 39°34′18″ N., longitude 074°14′43″ W., approximately 50 yards north of Parkers Island. 14 September—3rd Saturday Delaware River, Chester, PA; Safety Zone All waters of the Delaware River near Chester, PA just south of the Commodore Barry Bridge within a 250 yard radius of the fireworks barge located in approximate position latitude 39°49′43.2″ N., longitude 075°22′42″ W. 15 September—3rd Saturday Delaware River, Essington, PA; Safety Zone All waters of the Delaware River near Essington, PA, west of Little Tinicum Island within a 250 yard radius of the fireworks barge located in the approximate position latitude 39°51′18″ N., longitude 075°18′57″ W. 16 July 2nd, 3rd, 4th or 5th; Columbus Day; December 31st, January 1st Delaware River, Philadelphia, PA; Safety Zone All waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W., thence to latitude 39°56′29.1″ N., longitude 075°07′56.5″ W., and bounded on the north by the Benjamin Franklin Bridge. 17 July 2nd, 3rd, 4th or 5th N. Atlantic Ocean, Sea Isle City, NJ; Safety Zone All waters of N. Atlantic Ocean within a 350 yard radius of a fireworks barge located approximately at position latitude 39°08′49.5″ N., longitude 074°41′25.1″ W., near Sea Isle City, NJ. 18 April 8th; July 2nd, 3rd, 4th or 5th; December 31st Rehoboth Bay, DE; Safety Zone All waters within a 500 yard radius of a fireworks barge located at position latitude 38°41′21″ N., longitude 075°05′00″ W. at Rehoboth Bay near Dewey Beach, DE. (b.) Coast Guard Sector Maryland-National Capital Region—COTP Zone 1 April—1st or 2nd Saturday Washington Channel, Upper Potomac River, Washington, DC; Safety Zone All waters of the Upper Potomac River within 170 yards radius of the fireworks barge in approximate position latitude 38°52′20.3″ N., longitude 077°01′17.5″ W., located within the Washington Channel in Washington Harbor, DC. 2 July 4th; December—1st and 2nd Saturday; December 31st Severn River and Spa Creek, Annapolis, MD; Safety Zone All waters of the Severn River and Spa Creek within a 300 yard radius of the fireworks barge in approximate position 38°58′41.76″ N., 076°28′34.2″ W., located near the entrance to Spa Creek, Annapolis, MD. 3 July—4th, or Saturday before or after Independence Day holiday Middle River, Baltimore County, MD; Safety Zone All waters of the Middle River within a 300 yard radius of the fireworks barge in approximate position latitude 39°17′45″ N., longitude 076°23′49″ W., approximately 300 yards east of Rockaway Beach, near Turkey Point. 4 December 31 Upper Potomac River, Washington, DC; Safety Zone All waters of the Upper Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°48′14″ N., 077°02′10″ W., located near the waterfront (King Street) at Alexandria, Virginia. 5 June 14th; July 4th; September—2nd Saturday; December 31st Northwest Harbor (East Channel), Patapsco River, MD; Safety Zone All waters of the Patapsco River within a 300 yard radius of the fireworks barge in approximate position 39°15′55″ N., 076°34′35″ W., located adjacent to the East Channel of Northwest Harbor. 6 May—2nd or 3rd Thursday or Friday; July 4th; December 31st Baltimore Inner Harbor, Patapsco River, MD; Safety Zone All waters of the Patapsco River within a 100 yard radius of the fireworks barge in approximate position latitude 39°17′01″ N., longitude 076°36′31″ W., located at the entrance to Baltimore Inner Harbor, approximately 125 yards southwest of pier 3. 7 May—2nd or 3rd Thursday or Friday; July 4th December 31st Baltimore Inner Harbor, Patapsco River, MD; Safety Zone The waters of the Patapsco River within a 100 yard radius of approximate position latitude 39°17′04″ N., longitude 076°36′36″ W., located in Baltimore Inner Harbor, approximately 125 yards southeast of pier 1. 8 July 4th; December 31st Northwest Harbor (West Channel) Patapsco River, MD; Safety Zone All waters of the Patapsco River within a 300 yard radius of the fireworks barge in approximate position latitude 39°16′21″ N., longitude 076°34′38″ W., located adjacent to the West Channel of Northwest Harbor. 9 July—4th, or Saturday before or after Independence Day holiday Patuxent River, Calvert County, MD; Safety Zone All waters of the Patuxent River within a 200 yard radius of the fireworks barge located at latitude 38°19′17″ N., longitude 076°27′45″ W., approximately 800 feet from shore at Solomons Island, MD. 10 July 3rd Chesapeake Bay, Chesapeake Beach, MD; Safety Zone All waters of the Chesapeake Bay within a 200 yard radius of the fireworks barge in approximate position latitude 38°41′36″ N., longitude 076°31′30″ W., and within a 200 yard radius of the fireworks barge in approximate position latitude 38°41′28″ N., longitude 076°31′29″ W., located near Chesapeake Beach, Maryland. 11 July 4th Choptank River, Cambridge, MD; Safety Zone All waters of the Choptank River within a 300 yard radius of the fireworks launch site at Great Marsh Point, located at latitude 38°35′06″ N., longitude 076°04′46″ W. 12 July—2nd, 3rd or last Saturday Potomac River, Fairview Beach, Charles County, MD; Safety Zone All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position latitude 38°19′57″ N., longitude 077°14′40″ W., located north of the shoreline at Fairview Beach, Virginia. 13 May—last Saturday; July 4th Potomac River, Charles County, MD; Mount Vernon, Safety Zone All waters of the Potomac River within an area bound by a line drawn from the following points: latitude 38°42′30″ N., longitude 077°04′47″ W.; thence to latitude 38°42′18″ N., longitude 077°04′42″ W.; thence to latitude 38°42′11″ N., longitude 077°05′10″ W.; thence to latitude 38°42′22″ N., longitude 077°05′12″ W.; thence to point of origin located along the Potomac River shoreline at George Washington's Mount Vernon Estate, Fairfax County, VA. 14 October—1st Saturday Dukeharts Channel, Potomac River, MD; Safety Zone All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position latitude 38°13′27″ N., longitude 076°44′48″ W., located adjacent to Dukeharts Channel near Coltons Point, Maryland. 15 July—day before Independence Day holiday and July 4th; November—3rd Thursday, 3rd Saturday and last Friday; December—1st, 2nd and 3rd Friday Potomac River, National Harbor, MD; Safety Zone All waters of the Potomac River within an area bound by a line drawn from the following points: latitude 38°47′13″ N., longitude 077°00′58″ W., thence to latitude 38°46′51″ N., longitude 077°01′15″ W., thence to latitude 38°47′25″ N., longitude 077°01′33″ W., thence to latitude 38°47′32″ N., longitude 077°01′08″ W., thence to the point of origin, located at National Harbor, Maryland. 16 Sunday before or after July 4th, July 4th Susquehanna River, Havre de Grace, MD; Safety Zone All waters of the Susquehanna River within a 300 yard radius of approximate position latitude 39°32′06″ N., longitude 076°05′22″ W., located on the island at Millard Tydings Memorial Park. 17 June and July—Saturday before Independence Day holiday Miles River, St. Michaels, MD; Safety Zone All waters of the Miles River within a 200 yard radius of approximate position latitude 38°47′42″ N., longitude 076°12′51″ W., located at the entrance to Long Haul Creek. 18 July 3rd Tred Avon River, Oxford, MD; Safety Zone All waters of the Tred Avon River within a 150 yard radius of the fireworks barge in approximate position latitude 38°41′24″ N., longitude 076°10′37″ W., approximately 500 yards northwest of the waterfront at Oxford, MD. 19 July 3rd Northeast River, North East, MD; Safety Zone All waters of the Northeast River within a 300 yard radius of the fireworks barge in approximate position latitude 39°35′26″ N., longitude 075°57′00″ W., approximately 400 yards south of North East Community Park. 20 July—1st, 2nd or 3rd Saturday Upper Potomac River, Washington, D.C.; Safety Zone All waters of the Upper Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°48′38″ N., 077°01′56″ W., located east of Oronoco Bay Park at Alexandria, Virginia. 21 March through October, at the conclusion of evening MLB games at Washington Nationals Ball Park Anacostia River, Washington, DC; Safety Zone All waters of the Anacostia River within a 150 yard radius of the fireworks barge in approximate position latitude 38°52′13″ N., longitude 077°00′16″ W., located near the Washington Nationals Ball Park. 22 June—last Saturday or July—1st Saturday; July—3rd, 4th or last Saturday or September—Saturday before Labor Day (observed) Potomac River, Prince William County, VA; Safety Zone All waters of the Potomac River within a 200 yard radius of the fireworks barge in approximate position latitude 38°34′09″ N., longitude 077°15′32″ W., located near Cherry Hill, Virginia. 23 July 4th North Atlantic Ocean, Ocean City, MD; Safety Zone All waters of the North Atlantic Ocean in an area bound by the following points: latitude 38°19′39.9″ N., longitude 075°05′03.2″ W.; thence to latitude 38°19′36.7″ N., longitude 075°04′53.5″ W.; thence to latitude 38°19′45.6″ N., longitude 075°04′49.3″ W.; thence to latitude 38°19′49.1″ N., longitude 075°05′00.5″ W.; thence to point of origin. The size of the safety zone extends approximately 300 yards offshore from the fireworks launch area located at the high water mark on the beach. 24 May—Sunday before Memorial Day (observed). June 29th; July 4th and July every Sunday. August—1st Sunday and Sunday before Labor Day (observed) Isle of Wight Bay, Ocean City, MD; Safety Zone All waters of Isle of Wight Bay within a 200 yard radius of the fireworks barge in approximate position latitude 38°22′31″ N., longitude 075°04′34″ W. 25 July 4th Assawoman Bay, Fenwick Island—Ocean City, MD; Safety Zone All waters of Assawoman Bay within a 360 yard radius of the fireworks launch location on the pier at the West end of Northside Park, in approximate position latitude 38°25′55″ N., longitude 075°03′53″ W. 26 July 4th; December 31st Baltimore Harbor, Baltimore Inner Harbor, MD; Safety Zone All waters of Baltimore Harbor, Patapsco River, within a 280 yard radius of a fireworks barge in approximate position latitude 39°16′36.7″ N., longitude 076°35′53.8″ W., located northwest of the Domino Sugar refinery wharf at Baltimore, Maryland. 27 Thursday before July 4th (observed); and or July 4th Chester River, Kent Island Narrows, MD, Safety Zone All waters of Chester River, Kent Narrows North Approach, within a 300 yard radius of the fireworks launch site at Kent Island in approximate position latitude 38°58′44.4″ N., longitude 076°14′51.7″ W., in Queen Anne's County, MD. 28 Sunday before or after July 4th, July 4th Susquehanna River, Havre de Grace, MD; Safety Zone All waters of the Susquehanna River within a 300 yard radius of the fireworks barge in approximate position latitude 39°32′42″ N., longitude 076°04′29″ W., located east of the waterfront at Havre de Grace, MD. (c.) Coast Guard Sector Hampton Roads—COTP Zone 1 July 4th Linkhorn Bay, Virginia Beach, VA, Safety Zone All waters of the Linkhorn Bay within a 400 yard radius of the fireworks display in approximate position latitude 36°52′20″ N., longitude 076°00′38″ W., located near the Cavalier Golf and Yacht Club, Virginia Beach, Virginia. 2 September—last Friday or October—1st Friday York River, West Point, VA, Safety Zone All waters of the York River near West Point, VA within a 400 yard radius of the fireworks display located in approximate position latitude 37°31′25″ N., longitude 076°47′19″ W. 3 July 4th York River, Yorktown, VA, Safety Zone All waters of the York River within a 400 yard radius of the fireworks display in approximate position latitude 37°14′14″ N., longitude 076°30′02″ W., located near Yorktown, Virginia. 4 July 4th, July 5th, July 6th, or July 7th James River, Newport News, VA, Safety Zone All waters of the James River within a 325 yard radius of the fireworks barge in approximate position latitude 36°58′30″ N., longitude 076°26′19″ W., located in the vicinity of the Newport News Shipyard, Newport News, Virginia. 5 June—4th Friday; July—1st Friday; July 4th Chesapeake Bay, Norfolk, VA, Safety Zone All waters of the Chesapeake Bay within a 400 yard radius of the fireworks display located in position latitude 36°57′21″ N., longitude 076°150′0″ W., located near Ocean View Fishing Pier. 6 July 4th or 5th Chesapeake Bay, Virginia Beach, VA, Safety Zone All waters of the Chesapeake Bay 400 yard radius of the fireworks display in approximate position latitude 36°55′02″ N., longitude 076°03′27″ W., located at the First Landing State Park at Virginia Beach, Virginia. 7 July 4th; December 31st, January—1st Elizabeth River, Southern Branch, Norfolk, VA, Safety Zone All waters of the Elizabeth River Southern Branch in an area bound by the following points: latitude 36°50′54.8″ N., longitude 076°18′10.7″ W.; thence to latitude 36°51′7.9″ N., longitude 076°18′01″ W.; thence to latitude 36°50′45.6″ N., longitude 076°17′44.2″ W.; thence to latitude 36°50′29.6″ N., longitude 076°17′23.2″ W.; thence to latitude 36°50′7.7″ N., longitude 076°17′32.3″ W.; thence to latitude 36°49′58″ N., longitude 076°17′28.6″ W.; thence to latitude 36°49′52.6″ N., longitude 076°17′43.8″ W.; thence to latitude 36°50′27.2″ N., longitude 076°17′45.3″ W. thence to the point of origin. 8 July—3rd Saturday John H. Kerr Reservoir, Clarksville, VA, Safety Zone All waters of John H. Kerr Reservoir within a 400 yard radius of approximate position latitude 36°37′51″ N., longitude 078°32′50″ W., located near the center span of the State Route 15 Highway Bridge. 9 June, July, August, and September—every Wednesday, Thursday, Friday, Saturday and Sunday. July 4th North Atlantic Ocean, Virginia Beach, VA, Safety Zone A All waters of the North Atlantic Ocean within a 1000 yard radius of the center located near the shoreline at approximate position latitude 36°51′12″ N., longitude 075°58′06″ W., located off the beach between 17th and 31st streets. 10 September—last Saturday or October—1st Saturday North Atlantic Ocean, VA Beach, VA, Safety Zone B All waters of the North Atlantic Ocean within a 350 yard radius of approximate position latitude 36°50′35″ N., longitude 075°58′09″ W., located on the 14th Street Fishing Pier. 11 Friday, Saturday and Sunday Labor Day Weekend North Atlantic Ocean, VA Beach, VA, Safety Zone C All waters of the North Atlantic Ocean within a 350 yard radius of approximate position latitude 36°49′55″ N., longitude 075°58′00″ W., located off the beach between 2nd and 6th streets. 12 July 4th Nansemond River, Suffolk, VA, Safety Zone All waters of the Nansemond River within a 350 yard radius of approximate position latitude 36°44′27″ N., longitude 076°34′42″ W., located near Constant's Wharf in Suffolk, VA. 13 July 4th Chickahominy River, Williamsburg, VA, Safety Zone All waters of the Chickahominy River within a 400 yard radius of the fireworks display in approximate position latitude 37°14′50″ N., longitude 076°52′17″ W., near Barrets Point, Virginia. 14 July—3rd, 4th and 5th Great Wicomico River, Mila, VA, Safety Zone All waters of the Great Wicomico River located within a 140 yard radius of the fireworks display at approximate position latitude 37°50′31″ N., longitude 076°19′42″ W. near Mila, Virginia. 15 July—1st Friday, Saturday and Sunday Cockrell's Creek, Reedville, VA, Safety Zone All waters of Cockrell's Creek located within a 140 yard radius of the fireworks display at approximate position latitude 37°49′54″ N., longitude 076°16′44″ W. near Reedville, Virginia. 16 May—last Sunday James River, Richmond, VA, Safety Zone All waters of the James River located within a 140 yard radius of the fireworks display at approximate position latitude 37°31′13.1″ N., longitude 077°25′07.84″ W. near Richmond, Virginia. 17 June—last Saturday Rappahannock River, Tappahannock, VA, Safety Zone All waters of the Rappahannock River located within a 140 yard radius of the fireworks display at approximate position latitude 37°55′12″ N., longitude 076°49′12″ W. near Tappahannock, Virginia. 18 July 4th, August—1st Friday, Saturday and Sunday, and December 31st Cape Charles Harbor, Cape Charles, VA, Safety Zone All waters of Cape Charles Harbor located within a 125 yard radius of the fireworks display at approximate position latitude 37°15′46.5″ N., longitude 076°01′30.3″ W. near Cape Charles, Virginia. 19 July 3rd or 4th Pagan River, Smithfield, VA, Safety Zone All waters of the Pagan River located within a 140 yard radius of the fireworks display at approximate position latitude 36°59′18″ N., longitude 076°37′45″ W. near Smithfield, Virginia. 20 July 4th Sandbridge Shores, Virginia Beach, VA, Safety Zone All waters of Sandbridge Shores located within a 100 yard radius of the fireworks display at approximate position latitude 36°4324.9″ N., longitude 075°5624.9″ W. near Virginia Beach, Virginia. 21 July 4th, 5th or 6th Chesapeake Bay, Virginia Beach, VA, Safety Zone All waters of Chesapeake Bay located within a 200 yard radius of the fireworks display at approximate position latitude 36°5458.18″ N., longitude 076°0644.3″ W. near Virginia Beach, Virginia. 22 July 3rd, 4th and 5th Urbanna Creek, Urbanna, VA; Safety Zone All waters of Urbanna Creek within a 120 yard radius of the fireworks launch site at latitude 37°38′09″ N., longitude 076°34′03″ W., located on land near the east shoreline of Urbanna Creek and south of Bailey Point. 23 April—August, every Friday and Saturday; July 2nd, 3rd, 4th and 5th; last Sunday in August; and Friday, Saturday and Sunday of Labor day weekend Elizabeth River Eastern Branch, Norfolk, VA; Safety Zone All waters of Eastern Branch Elizabeth River within the area along the shoreline immediately adjacent to Harbor Park Stadium ball park and outward into the river bound by a line drawn from latitude 36°50′30″ N., longitude 076°16′39.9″ W., thence south to 36°50′26.6″ N., longitude 076°16′39″ W., thence northwest to 36°50′28.8″ N., longitude 076°16′49.1″ W., thence north to 36°50′30.9″ N., longitude 076°16′48.6″ W., thence east along the shoreline to point of origin. (d.) Coast Guard Sector North Carolina—COTP Zone 1 July 4th; October—1st Saturday Morehead City Harbor Channel, NC, Safety Zone All waters of the Morehead City Harbor Channel that fall within a 360 yard radius of latitude 34°43′01″ N., longitude 076°42′59.6″ W., a position located at the west end of Sugar Loaf Island, NC. 2 April—2nd Saturday; July 4th; August—3rd Monday; October—1st Saturday Cape Fear River, Wilmington, NC, Safety Zone All waters of the Cape Fear River within an area bound by a line drawn from the following points: latitude 34°13′54″ N., longitude 077°57′06″ W.; thence northeast to latitude 34°13′57″ N., longitude 077°57′05″ W.; thence north to latitude 34°14′11″ N., longitude 077°57′07″ W.; thence northwest to latitude 34°14′22″ N., longitude 077°57′19″ W.; thence east to latitude 34°14′22″ N., longitude 077°57′06″ W.; thence southeast to latitude 34°14′07″ N., longitude 077°57′00″ W.; thence south to latitude 34°13′54″ N., longitude 077°56′58″ W.; thence to the point of origin, located approximately 500 yards north of Cape Fear Memorial Bridge. 3 July 1st Saturday and July 4th Green Creek and Smith Creek, Oriental, NC, Safety Zone All waters of Green Creek and Smith Creek that fall within a 300 yard radius of the fireworks launch site at latitude 35°01′29.6″ N., longitude 076°42′10.4″ W., located near the entrance to the Neuse River in the vicinity of Oriental, NC. 4 July 4th Pasquotank River, Elizabeth City, NC, Safety Zone All waters of the Pasquotank River within a 300 yard radius of the fireworks launch barge in approximate position latitude 36°17′47″ N., longitude 076°12′17″ W., located approximately 400 yards north of Cottage Point, NC. 5 July 4th, or July 5th Currituck Sound, Corolla, NC, Safety Zone All waters of the Currituck Sound within a 300 yard radius of the fireworks launch site in approximate position latitude 36°22′23.8″ N., longitude 075°49′56.3″ W., located near Whale Head Bay. 6 July 4th; November—3rd Saturday Middle Sound, Figure Eight Island, NC, Safety Zone All waters of the Figure Eight Island Causeway Channel from latitude 34°16′32″ N., longitude 077°45′32″ W., thence east along the marsh to latitude 34°16′19″ N., longitude 077°44′55″ W., thence south to the causeway at latitude 34°16′16″ N., longitude 077°44′58″ W., thence west along the shoreline to latitude 34°16′29″ N., longitude 077°45′34″ W., thence back to the point of origin. 7 June—2nd Saturday; July 4th Pamlico River, Washington, NC, Safety Zone All waters of Pamlico River and Tar River within a 300 yard radius of latitude 35°32′25″ N., longitude 077°03′42″ W., a position located on the southwest shore of the Pamlico River, Washington, NC. 8 July 4th Neuse River, New Bern, NC, Safety Zone All waters of the Neuse River within a 360 yard radius of the fireworks barge in approximate position latitude 35°06′07.1″ N., longitude 077°01′35.8″ W.; located 420 yards north of the New Bern, Twin Span, high-rise bridge. 9 July 4th Edenton Bay, Edenton, NC, Safety Zone All waters within a 300 yard radius of position latitude 36°03′04″ N., longitude 076°36′18″ W., approximately 150 yards south of the entrance to Queen Anne Creek, Edenton, NC. 10 July 4th. November—Saturday following Thanksgiving Day Motts Channel, Banks Channel, Wrightsville Beach, NC, Safety Zone All waters of Motts Channel within a 500 yard radius of the fireworks launch site in approximate position latitude 34°12′29″ N., longitude 077°48′27″ W., approximately 560 yards south of Sea Path Marina, Wrightsville Beach, NC. 11 July 4th Cape Fear River, Southport, NC, Safety Zone All waters of the Cape Fear River within a 600 yard radius of the fireworks barge in approximate position latitude 33°54′40″ N., longitude 078°01′18″ W., approximately 700 yards south of the waterfront at Southport, NC. 12 July 4th Big Foot Slough, Ocracoke, NC, Safety Zone All waters of Big Foot Slough within a 300 yard radius of the fireworks launch site in approximate position latitude 35°06′54″ N., longitude 075°59′24″ W., approximately 100 yards west of the Silver Lake Entrance Channel at Ocracoke, NC. 13 August—1st Tuesday New River, Jacksonville, NC, Safety Zone All waters of the New River within a 300 yard radius of the fireworks launch site in approximate position latitude 34°44′45″ N., longitude 077°26′18″ W., approximately one half mile south of the Hwy 17 Bridge, Jacksonville, North Carolina. 14 July 4th Pantego Creek, Belhaven, NC, Safety Zone All waters on the Pantego Creek within a 200 yard radius of the launch site on land at position 35°32′35″ N., 076°37′46″ W. 15 July 4th Atlantic Intracoastal Waterway, Swansboro, NC, Safety Zone All waters of the Atlantic Intracoastal Waterway within a 300 yard radius of approximate position latitude 34°41′02″ N., longitude 077°07′04″ W., located on Pelican Island. 16 September—4th or last Saturday Shallowbag Bay, Manteo, NC; Safety Zone All waters of Shallowbag Bay within a 200 yard radius of a fireworks barge anchored at latitude 35°54′31″ N., longitude 075°39′42″ W. 17 May—3rd Saturday Pasquotank River; Elizabeth City, NC; Safety Zone All waters of the Pasquotank River within a 300 yard radius of the fireworks barge at latitude 36°17′47″ N., longitude 076°12′17″ W., located north of Cottage Point at the shoreline of the Pasquotank River. 18 October—2nd Saturday Atlantic Intracoastal Waterway; Bogue Inlet, Swansboro, NC; Safety Zone All waters of the Atlantic Intracoastal Waterway within a 300 yard radius of the fireworks launch site at latitude 34°41′02″ N., longitude 077°07′04″ W., located at Bogue Inlet, near Swansboro, NC. 1 As noted in paragraph (d) of this section, the enforcement period for each of the listed safety zones is subject to change.
    Dated: August 24, 2016. Meredith L. Austin, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
    [FR Doc. 2016-21996 Filed 9-13-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0878] Security Zone; Protection of Military Cargo, Captain of the Port Zone Puget Sound AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce regulations for the Sitcum Waterway security zone in Commencement Bay, Tacoma, Washington, from 6 a.m. on September 15, 2016, through 11:59 p.m. on September 20, 2016, unless cancelled sooner by the Captain of the Port. This action is necessary for the security of Department of Defense assets and military cargo in the navigable waters of Puget Sound and adjacent waters. Entry into this security zone is prohibited unless authorized by the Captain of the Port or his Designated Representative, or is otherwise provided by exemption or waiver provisions in these security zone regulations.

    DATES:

    The regulations in 33 CFR 165.1321 will be enforced from 6 a.m. on September 15, 2016, through 11:59 p.m. on September 20, 2016, for the security zone indentified in paragraph (c)(2) of that section, unless cancelled sooner by the Captain of the Port.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Chief Warrant Officer Jeffrey Zappen, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206-217-6076, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce regulations in 33 CFR 165.1321 for the Sitcum Waterway Security Zone identified in paragraph (c)(2) of that section, from September 15, 2016, at 6 a.m. through 11:59 p.m. on September 20, 2016, unless cancelled sooner by the Captain of the Port or Designated Representative. Under the provisions of 33 CFR 165.1321, the security zone will provide for the regulation of vessel traffic in the vicinity of military cargo loading facilities in the navigable waters of the United States. The security zones also exclude persons and vessels from the immediate vicinity of these facilities during military cargo loading and unloading operations. In addition, the regulation establishes requirements for all vessels to obtain permission of the COTP or Designated Representative, including the Vessel Traffic Service (VTS), to enter, move within, or exit these security zones when they are enforced. Entry into this zone is prohibited unless authorized by the Captain of the Port or a Designated Representative, or is otherwise allowed under exemption or waiver provisions in 33 CFR 165.1321(h) or (i).

    This notice of enforcement is issued under authority of 33 CFR 165.1321 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with notification of this enforcement period via marine information broadcasts and on-scene assets. If the COTP determines that the regulated area need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

    Dated: September 8, 2016. M.W. Raymond, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
    [FR Doc. 2016-22098 Filed 9-13-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter I RIN 1875-AA11 [Docket ID ED-2016-OS-0002] Secretary's Final Supplemental Priority for Discretionary Grant Programs AGENCY:

    Department of Education.

    ACTION:

    Final priority.

    SUMMARY:

    To further support a comprehensive education agenda and to address concentrated poverty and related segregation in our Nation's schools, the Secretary of Education establishes an additional priority primarily for use in any discretionary grant program focused on elementary and secondary education, as appropriate, for fiscal year (FY) 2016 and future years. The Secretary adds this priority to the existing supplemental priorities and definitions for discretionary grant programs that were published in the Federal Register on December 10, 2014 (2014 Supplemental Priorities). This priority reflects our efforts to address emerging needs in education.

    DATES:

    This supplemental priority is effective October 14, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ramin Taheri, U.S. Department of Education, 400 Maryland Avenue SW., Room 5E343, Washington, DC 20202-5930. Telephone: (202) 453-5961 or by email: [email protected].

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION: Program Authority:

    20 U.S.C. 1221e-3, 3474.

    We published a notice of proposed priority (NPP) in the Federal Register on June 8, 2016 (81 FR 36833). That document contained background information and our reasons for proposing the additional priority.

    Public Comment: In response to our invitation in the NPP, 13 parties submitted comments on the proposed priority.

    Analysis of Comments and Changes: An analysis of the comments follows. We group our discussion according to the general issues raised. We do not address technical and other minor changes.

    Comment: Several commenters expressed concern that the proposed priority would adversely affect rural communities and students who reside within them, where the geographic isolation of students from one particular racial, ethnic, or socioeconomic group would render efforts to diversify schools difficult or impossible. Many of these commenters expressed support for the priority and the importance of addressing the growing segregation and inequality in our Nation's schools, but suggested that the Department use the priority as an invitational priority, as opposed to a competitive preference or absolute priority, to ensure that rural applicants are not unfairly disadvantaged in grant competitions.

    Discussion: We appreciate the commenters' concern that the priority may not be appropriate or beneficial for rural communities whose geographical constraints make increasing socioeconomic diversity infeasible. First, we note that increasing educational equity for rural students and communities is a focus area for the Department of Education (the Department); for example, Priority 4—Supporting High-Need Students from the 2014 Supplemental Priorities includes language that allows the Department to prioritize projects designed to improve outcomes for students served by rural local educational agencies (LEAs).

    Second, we acknowledge that solutions to educational challenges are often different in rural, urban, and suburban communities. We note, however, that the Department has discretion in how and when it will use this priority (including whether to use it as an invitational or other type of priority), and does not intend to use this priority in a way that would disadvantage rural applicants. Rather, it is our intention to use this priority strategically to encourage diversity only in those situations where we believe such efforts are most appropriate and best support the possibility of increasing socioeconomic diversity in schools.

    Changes: None.

    Comment: In addition to concerns related to geographically isolated, rural communities, many commenters raised questions regarding the utility of the priority in Indian country. Specifically, these commenters expressed concerns about how the priority would affect American Indian or Alaska Native students who attend schools in rural areas, on tribal lands that are geographically isolated, or in villages or communities that are not accessible, legally or physically, to students who are not members of a particular American Indian or Alaska Native tribe. One commenter suggested the Department can protect against unintended negative impacts on Native students by including a race-based preference whenever using the priority for socioeconomic diversity.

    Discussion: We understand and appreciate the concerns raised with respect to Native students and their communities. As with rural LEAs, however, the Department believes that the 2014 Supplemental Priorities include a priority to help address these concerns; specifically, Priority 4—Serving High-Need Students, which allows the Department to prioritize projects designed to serve students who are members of federally recognized Indian tribes, provides a sufficient basis for the Department to channel Federal resources toward improved outcomes for Native students. With respect to the comment suggesting that the Department include a race-based preference in tandem with the priority, we note that Priority 12—Promoting Diversity from the 2014 Supplemental Priorities includes language that allows the Department to focus on projects designed to increase racial and ethnic diversity. Finally, as mentioned in the discussion of the comments regarding rural communities, while the Department declines to make any changes to the priority based on these comments, we reiterate our intention to use this priority strategically to encourage diversity only in those situations where we believe such efforts are most appropriate and we do not intend to use it in a way that would adversely affect Native students.

    Changes: None.

    Comment: Several commenters expressed support for increasing diversity in our Nation's public schools. One commenter suggested that a focus on diversity must be accompanied by concerted efforts to foster and maintain positive and supportive school climates. The commenter further urged the Department to issue guidance or other technical assistance documents related to school diversity. Finally, the commenter suggested that the Department ensure that potential grant applicants wishing to focus on diversity initiate and maintain communications with their local communities.

    Discussion: We appreciate the comments in support of the priority and the Department's focus on increasing diversity. The Department agrees that a focus on positive school climate is an important part of improving outcomes for all students. Moreover, a positive, supportive school climate may be essential to ensuring that a diverse student body achieves true cohesiveness. While we decline to make any changes to the priority based on this comment, the Department remains committed to exploring avenues to encourage safe, supportive, and positive school climates. For example, Priority 13—Improving School Climate, Behavioral Supports, and Correctional Education from the 2014 Supplemental Priorities offers opportunities to direct Federal resources toward projects designed to improve school climate.

    We appreciate the comment suggesting that the Department issue guidance or technical assistance documents about school diversity. We agree that additional resources may be helpful in assisting LEAs and communities in undertaking efforts to diversify their schools. We note that there are existing resources, such as the Department's Equity Assistance Centers, that stand ready to offer technical assistance related to school climate issues based on race, national origin, sex, and religion. Moreover, the Department continues to explore all opportunities to develop and issue guidance materials in this and other important policy areas.

    Finally, the Department agrees with the recommendation that grant applicants collaborate and communicate with their local communities. Public engagement is an integral part of any comprehensive, successful school diversity strategy. In that regard, the priority includes language that contemplates community input, robust family and community involvement, and other forms of public engagement.

    Changes: None.

    Comment: None.

    Discussion: We are revising paragraph (d) to allow the Department more flexibility to tailor the priority for each competition in which the priority is used in order to narrow the focus on the strategies proving most effective in a specific context or on where the greatest needs are from year to year. We note that revisions to paragraph (d) would still allow the Department to use the paragraph in its entirety, as appropriate.

    Changes: In the introductory language, subparagraph (ii), and subparagraph (vi) of paragraph (d), we have revised the priority to provide the Department the flexibility described above. In addition, we have revised the wording in subparagraphs (ii), (v), and (vi) so that each will stand better on its own should it be used in isolation in a grant competition.

    Final Priority: The Secretary establishes the following priority for use primarily in any discretionary grant competition focused on elementary and secondary education, as appropriate, in FY 2016 and future years. This priority is in addition to the 2014 Supplemental Priorities.

    Priority—Increasing Socioeconomic Diversity in Schools

    Projects that are designed to increase socioeconomic diversity in educational settings by addressing one or more of the following:

    (a) Using established survey or data-collection methods to identify socioeconomic stratification and related barriers to socioeconomic diversity at the classroom, school, district, community, or regional level.

    (b) Developing, evaluating, or providing technical assistance on evidence-based policies or strategies designed to increase socioeconomic diversity in schools.

    (c) Designing or implementing, with community input, education funding strategies, such as the use of weighted per-pupil allocations of local, State, and eligible Federal funds, to provide incentives for schools and districts to increase socioeconomic diversity.

    (d) Developing or implementing policies or strategies to increase socioeconomic diversity in schools that are evidence-based; demonstrate ongoing, robust family and community involvement, including a process for intensive public engagement and consultation; and meet one or more of the following factors—

    (i) Are carried out on one or more of an intra-district, inter-district, community, or regional basis;

    (ii) Reflect coordination with other relevant government entities, including housing or transportation authorities, to the extent practicable;

    (iii) Are based on an existing, public diversity plan or diversity needs assessment; and

    (iv) Include one or both of the following strategies—

    (A) Establishing school assignment or admissions policies that are designed to give preference to low-income students, students from low-performing schools, or students residing in neighborhoods experiencing concentrated poverty to attend higher-performing schools; or

    (B) Establishing or expanding schools that are designed to attract substantial numbers of students from different socioeconomic backgrounds, such as magnet or theme schools, charter schools, or other schools of choice.

    Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

    Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

    Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

    Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

    This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

    Note:

    This notice does not solicit applications. In any year in which we choose to use one or more of these priorities and definitions, we invite applications through a notice in the Federal Register.

    Executive Orders 12866 and 13563 Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

    (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

    (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

    (3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

    This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

    We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

    (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

    (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

    (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

    (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

    (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

    Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

    We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected the approach that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

    We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

    In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from regulatory requirements and those we have determined as necessary for administering the Department's programs and activities.

    Discussion of Costs and Benefits: The final priority will not impose significant costs on entities that would receive assistance through the Department's discretionary grant programs. Additionally, the benefits of implementing the final priority outweigh any associated costs because it will allow the Department to focus discretionary grant competitions on this important area.

    Application submission and participation in a discretionary grant program are voluntary. The Secretary believes that the costs imposed on applicants by the final priority will be limited to paperwork burden related to preparing an application for a discretionary grant program that is using the priority in its competition. Because the costs of carrying out activities would be paid for with program funds, the costs of implementation would not be a burden for any eligible applicants, including small entities.

    Regulatory Flexibility Act Certification: For these reasons as well, the Secretary certifies that these final regulations will not have a significant economic impact on a substantial number of small entities.

    Intergovernmental Review: Some of the programs affected by this final priority are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

    This document provides early notification of our specific plans and actions for these programs.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: September 9, 2016. John B. King, Jr., Secretary of Education.
    [FR Doc. 2016-22104 Filed 9-13-16; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2016-0441; A-1-FRL-9952-11-Region I] Air Plan Approval; VT; Prevention of Significant Deterioration, PM2.5 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Vermont. The revision sets the amount of PM2.5 increment sources are permitted to consume when obtaining a prevention of significant deterioration (PSD) preconstruction permit and requires PM2.5 emission offsets under certain circumstances. This action is being taken in accordance with the Clean Air Act.

    DATES:

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

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2016-0441 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:

    Ida E. McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, (OEP05-2), Boston, MA 02109-3912, phone number (617) 918-1653, fax number (617) 918-0653, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    I. Background and Purpose II. Summary of State Submittal III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background and Purpose

    On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 PSD Rule). See 75 FR 64864. This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

    II. Summary of State Submittal

    On July 25, 2014, the VT DEC submitted a revision to its state implementation plan (SIP) primarily addressing permitting requirements for PM2.5 emissions. In a letter dated July 13, 2016, VT DEC withdrew some, but not all, of the revisions the State requested in its 2014 SIP submittal. The State withdrew these provisions for various reasons; either because more information would be needed before certain provisions could be approved by EPA into the SIP, one provision was erroneously submitted, or Vermont intends in the near future to revise certain provisions and resubmit them to EPA. On July 20, 2016, EPA's Region I Administrator signed a direct final notice approving the remaining revisions except for revisions Vermont made to its Air Pollution Control Regulations (APCR), Table 2 (Prevention of Significant Deterioration (PSD) Increments) and Table 3 (Levels of Significant Impact).

    Vermont revised Table 2 by adding increments for PM2.5 as well as some minor grammatical changes. Vermont revised Table 3 by changing the table's title, removing the level of significant impact for Total Suspended Particles, and adding levels for PM2.5. Tables 2 and 3 address different aspects of permitting. Table 2 addresses the amount of a pollutant (increment consumption) a major new or modified source may contribute to the ambient air consistent with the CAA's requirements. Table 3 addresses situations in which Vermont's regulations would require emissions offsets, even for major new or modified sources that are subject to PSD preconstruction permitting requirements.

    III. Final Action

    EPA has found the PSD increment values added to Table 2 to be consistent with 40 CFR 51.166(c) and has also found that the increment values meet the anti-back sliding requirements of Section 110(l) of the Clean Air Act. Therefore, EPA is approving revised Table 2 into the Vermont SIP.

    Vermont revised Table 3 by adding thresholds for PM2.5 for Class I, II, and III areas. Major new or modified sources subject to PSD permitting requirements must obtain emissions offsets if the listed thresholds would be exceeded in an area found not to be attaining the national ambient air quality standard. The thresholds in Table 3 for PM2.5 for Class II and Class III areas are consistent with the PM2.5 thresholds in 40 CFR 51.165(b)(2), while Vermont's thresholds for Class I areas are significantly more stringent than the federal regulation. Vermont also removed from Table 3 the threshold for Total Suspended Particles because EPA's regulations no longer contain a threshold for this pollutant. EPA currently sets the National Ambient Air Quality Standard for particulate matter as PM10 and PM2.5 and no longer sets a standard for Total Suspended Particles. EPA has found both revisions to Table 3 to be consistent with 40 CFR 51.165(b)(2) and Section 110(l) of the Clean Air Act. Therefore, EPA is approving revised Table 3 into the Vermont SIP.

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

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

    IV. Incorporation by Reference

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

    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 action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of 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. 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, Particulate matter, Reporting and recordkeeping requirements.

    Dated: August 8, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.

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

    PART 52—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 UU—Vermont 2. In § 52.2370(c), the table “EPA Approved Vermont Regulations” is amended by revising the state citation entries for Table 2 and Table 3 to read as follows:
    § 52.2370 Identification of plan.

    (c) * * *

    EPA-Approved Vermont Regulations State citation Title/subject State effective
  • date
  • EPA approval date Explanations
    *         *         *         *         *         *         * Table 2 Table 2—PSD increments 7/5/2014 9/14/2016, [Insert Federal Register citation] Added increment thresholds for PM2.5. Table 3 Table 3—Levels of significant impact 7/5/2014 9/14/2016, [Insert Federal Register citation] Added levels for PM2.5. *         *         *         *         *         *         *
    [FR Doc. 2016-21881 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2015-0042; FRL-9952-09-Region 8] Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Second Ten-Year PM10 Maintenance Plan for Lamar AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the State of Colorado. On May 13, 2013, the Governor of Colorado's designee submitted to the EPA a revised maintenance plan for the Lamar area for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to 10 microns (PM10). The EPA is approving the revised maintenance plan with the exception of one aspect of the plan's contingency measures.

    DATES:

    This final rule is effective on October 14, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2015-0042. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    James Hou, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6210, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Lamar area was designated nonattainment for PM10 and classified as moderate by operation of law upon enactment of the Clean Air Act (CAA) Amendments of 1990. See 56 FR 56694, 56705, 56736 (November 6, 1991). EPA approved Colorado's nonattainment area SIP for the Lamar PM10 nonattainment area on June 9, 1994 (59 FR 29732).

    On May 13, 2013, the Governor of Colorado's designee submitted the second 10-year update of the PM10 maintenance plan for the Lamar area to the EPA. On June 1, 2016, the EPA published a proposed rulemaking in which we proposed to approve the 10-year update because it demonstrates continued maintenance of the PM10 NAAQS through 2025.

    II. Response to Comments

    We received one comment letter during the public comment period, which was submitted anonymously.

    Comment: Given the high number of high wind occurrences, and given the consistently windy nature of the Lamar area, the EPA cannot rely on the Exceptional Events Rule (EER) to ignore PM10 exceedances. In doing so, the EPA is failing to provide environmental justice for people in rural areas, by failing to provide them with clean air.

    Response: 55 exceedances between two monitors over the course of 14 years were reported by the City of Lamar. The EPA notes that high wind events do not have to be rare to be considered an exceptional event. Quoting from the “Interim Guidance on the Preparation of Demonstrations in Support of Requests to Exclude Ambient Air Quality Data Affected by High Winds Under the Exceptional Events Rule,” U.S. EPA May 2013 page 20, it states,

    The EPA will use a weight-of-evidence approach to assess each demonstration and comparison of the concentrations during event(s) in question with historical concentration data on a case-by-case basis. The EPA acknowledges that natural events, such as high wind dust events, can recur and still be eligible for exclusion under the EER. Therefore, events do not necessarily have to be rare to satisfy this element.

    Of the 34 out of 55 flagged PM10 high wind monitored values, which the EPA has concurred with, each event has met the criteria set forth under the EER. Having satisfied these requirements, and having obtained concurrence from the EPA, we find that the exclusion of these data from regulatory decisions is appropriate. Additionally, the EPA's review and concurrence with the 34 of 55 flagged PM10 high wind monitored values is consistent with the EER, and such analysis is applied uniformly throughout the state. III. Final Action

    We are approving the revised Lamar PM10 Maintenance Plan that was submitted to us on May 13, 2013, with one exception. We are not acting on the submitted update to the Natural Events Action Plan (NEAP), as the NEAP is not part of the SIP. We are approving the remainder of the revised maintenance plan because it demonstrates maintenance through 2025 as required by CAA section 175A(b), retains the control measures from the initial PM10 maintenance plan that the EPA approved on October 25, 2005, and meets other CAA requirements for a section 175A maintenance plan. We are excluding from use in determining that Lamar continues to attain the PM10 NAAQS, exceedances of the PM10 NAAQS that were recorded at the Lamar Power Plant PM10 monitor on February 9, 2002; March 7, 2002; May 21, 2002; June 20, 2002; April 5, 2002; May 22, 2008; January 19, 2009; April 3, 2011; and November 5, 2011, because the exceedances meet the criteria for exceptional events caused by high wind natural events.

    Additionally, the EPA is proposing to exclude from use in determining that Lamar continues to attain the PM10 NAAQS, exceedances of the PM10 NAAQS that were recorded at the Municipal Complex PM10 monitor on May 21, 2002; June 20, 2002; April 5, 2005; January 19, 2009; February 8, 2013; March 18, 2012; April 2, 2012; April 9, 2013; May 1, 2013; May 24, 2013; May 25, 2013; May 28, 2013; December 24, 2013; February 16, 2014; March 11, 2014; March 15, 2014; March 18, 2014; March 29, 2014; March 30, 2014; March 31, 2014; April 23, 2014; April 29, 2014; November 10, 2014; April 1, 2015; and April 2, 2015, because the exceedances meet the criteria for exceptional events caused by high wind natural events. We are also approving the revised maintenance plan's 2025 transportation conformity motor vehicle emission budget for PM10 of 764 lbs/day.

    IV. Statutory and Executive Orders Review

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by state law. For this reason, these actions:

    • Are not significant regulatory actions 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);

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

    • Are 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.);

    • Do 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);

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

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

    • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Are 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

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

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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The 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 November 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA 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, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 26, 2016. Debra H. Thomas, Acting Regional Administrator, Region 8.
    [FR Doc. 2016-21755 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0250; FRL-9952-32-Region 4] Air Plan Approval; GA Infrastructure Requirements for the 2010 1-Hour NO2 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of Georgia, through the Georgia Department of Natural Resources, Environmental Protection Division (GA EPD), on March 25, 2013, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. GA EPD certified that the Georgia SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Georgia. EPA has determined that portions of Georgia's infrastructure submission, submitted on March 25, 2013, addresses certain required infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    This rule will be effective October 14, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0250. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., 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:

    Richard Wong, 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. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Overview

    On January 22, 2010, (published at 75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.

    In a proposed rulemaking published on June 28, 2016 (81 FR 41905), EPA proposed to approve Georgia's 2010 1-hour NO2 NAAQS infrastructure SIP submission submitted on March 25, 2013, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA did not propose any action. On March 18, 2015 (80 FR 14019), EPA approved Georgia's March 25, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. Therefore, EPA is not taking any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). Additionally, on July 11, 2016, EPA published a proposed rule related to the prong 4 element of Georgia's March 25, 2013, SIP submission for the 2010 1-hour NO2 NAAQS. See 81 FR 44831. EPA will consider final action on the prong 4 element of Georgia's March 25, 2013, SIP submission for the 2010 1-hour NO2 NAAQS through a separate rulemaking. With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA does not yet have a submission before the Agency for action. The details of Georgia's submission and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before July 28, 2016. EPA received no adverse comments on the proposed action.

    II. Final Action

    With the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final action to action to approve Georgia's infrastructure submission submitted on March 25, 2013, for the 2010 1-hour NO2 NAAQS. EPA is taking final action to approve Georgia's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because the submission is consistent with section 110 of the CAA.

    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).

    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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 November 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

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

    Dated: September 2, 2016. V. Anne Heard, Acting 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 L—Georgia 2. Section 52.570(e), is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS” at the end of the table to read as follows:
    § 52.570 Identification of plan.

    (e) * * *

    EPA-Approved Georgia Non-Regulatory Provisions Name of nonregulatory
  • SIP provision
  • Applicable geographic or
  • nonattainment area
  • State
  • submittal date/effective date
  • EPA approval date Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAASQ Georgia 3/25/2013 9/14/2016 With the exception of sections 110(a)(2)(C), prong 3 of D(i), and (J) and sections 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4).
    [FR Doc. 2016-21991 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0501; FRL-9952-31-Region 4] Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5) AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving, in part, and disapproving, in part, changes to the North Carolina State Implementation Plan (SIP), provided by the North Carolina Department of Environmental Quality (NC DEQ) through the Division of Air Quality (DAQ), to EPA in submittals dated May 16, 2011, (two separate submittals) and September 5, 2013. These SIP submittals modify North Carolina's New Source Review (NSR)—Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR)—permitting regulations and include the adoption of some federal requirements regarding implementation of the fine particulate matter (PM2.5) national ambient air quality standards (NAAQS) through the NSR permitting program. As a result of the disapproval of a portion of the State's NSR requirements, EPA is also approving, in part, and disapproving, in part, the PSD elements of North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 sulfur dioxide (SO2), 2010 nitrogen dioxide (NO2) and the 2012 PM2.5 NAAQS, and converting the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals. This partial disapproval triggers the requirement for EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiencies through a SIP revision and EPA approves the SIP revision before EPA promulgates such a FIP.

    DATES:

    This rule will be effective October 14, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0501. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., 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:

    Joel Huey of the 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. Huey can be reached by telephone at (404) 562-9104 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background and Overview

    In submittals dated May 16, 2011 (two separate submittals), and September 5, 2013, DAQ submitted to EPA changes to the North Carolina SIP with regard to the State's PSD and NNSR regulations found at 15A North Carolina Administrative Code (NCAC) 02D .0530 and 15A NCAC 02D .0531. These SIP submittals modify North Carolina's NSR permitting regulations (for both PSD and NNSR) and include the adoption of some federal requirements regarding implementation of the PM2.5 NAAQS through the NSR permitting program. In the notice of proposed rulemaking (NPRM) published on May 10, 2016 (81 FR 28797), EPA proposed to take the following four actions, some with multiple parts, regarding the North Carolina submittals:

    • Approval of a May 16, 2011, SIP submittal from North Carolina (as revised and updated by the State's September 5, 2013, SIP submittal) as meeting the requirements of EPA's rule, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” Final Rule, 73 FR 28321 (May 16, 2008) (hereafter referred to as the “2008 NSR PM2.5 Implementation Rule”).

    • Disapproval of the portions of North Carolina's September 5, 2013, SIP submittal pertaining to adoption and implementation of the PM2.5 increments because North Carolina's proposed SIP revisions do not fully meet the requirements of EPA's rulemaking, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),” Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as the “2010 PSD PM2.5 Rule”). Specifically, though paragraphs (q) and (v) of North Carolina's revised PSD regulations at 15A NCAC 02D .0530 incorporate the federally required numerical PM2.5 increments, North Carolina's regulations fail to include other federally required provisions needed to implement the PM2.5 increments, including (1) the definition of “[m]ajor source baseline date” for PM2.5 codified at 40 CFR 51.166(b)(14)(i)(c) (defined as October 20, 2010); (2) the definition of “[m]inor source baseline date” for PM2.5 codified at 40 CFR 51.166(b)(14)(ii)(c) (which establishes the PM2.5 trigger date as October 20, 2011); and (3) the definition of “[b]aseline area” codified at 40 CFR 51.166(b)(15)(i).1 Without these definitions, North Carolina's PSD regulations do not require PSD sources to conduct the appropriate analyses demonstrating that emissions from proposed construction of new major stationary sources or major modifications will not cause or contribute to air quality deterioration beyond the amount allowed by the PM2.5 increments. Therefore, EPA proposed to disapprove all of the PM2.5 increment provisions set forth in North Carolina's September 5, 2013, SIP submittal, including all of the PM2.5-related changes to 15A NCAC 02D .0530 at paragraphs (e), (q), and (v).2

    1 North Carolina's regulations at 15A NCAC 02D .0530 use incorporation by reference (IBR) to adopt the federal regulations in the CFR as of May 16, 2008, which do not include the definitions of “major source baseline,” “minor source baseline,” and “baseline area” that EPA promulgated in the 2010 PSD PM2.5 rule. Thus, the definition of “major source baseline date” incorporated into 15A NCAC 02D .0530 does not include the federally required PM2.5 major source baseline date of October 20, 2010, but instead states: “In the case of particulate matter and sulfur dioxide, January 6, 1975.” Likewise, the definition of “minor source baseline date” incorporated into 15A NCAC 02D .0530 does not include the federally required PM2.5 trigger date of October 20, 2011, but instead states: “In the case of particulate matter and sulfur dioxide, August 7, 1977.” It is EPA's understanding that North Carolina interprets the term “particulate matter” in North Carolina's regulations to encompass PM2.5, resulting in a PM2.5 major source baseline date of January 6, 1975, and a PM2.5 trigger date of August 7, 1977.

    2 Paragraph (v) establishes the numerical PM2.5 increments. Paragraph (q) addresses the Class I PM2.5 variances. Paragraph (e) incorporates paragraph (v) by reference. EPA proposed to disapprove 15A NCAC 02D .0530, paragraphs (e), (q), and (v) in part, rather than in their entirety, because the paragraphs also include previously approved PM10 increment requirements. Specifically, in addition to making the PM2.5-related changes to these paragraphs, North Carolina also revised 15A NCAC 02D .0530, paragraphs (e), (q), and (v), to directly incorporate the PM10 increments. Previously, North Carolina had incorporated the PM10 increments into 15A NCAC 02D .0530 by reference to the CFR. EPA is approving the PM10-related changes to paragraphs (e), (q), and (v).

    • Approval of administrative changes to North Carolina's PSD and NNSR regulations at 15A NCAC 02D .0530 and 15A NCAC 02D .0531 provided by the State in a SIP submittal also dated May 16, 2011, including clarification of the applicability of best available control technology (BACT) and lowest achievable emission rate (LAER) for electrical generating units (EGUs) in the State, and the inclusion of an additional Federal Land Manager (FLM) notification provision.

    • Approval, in part, and disapproval, in part, of the PSD elements of North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO2, 2010 NO2 and 2012 PM2.5 NAAQS and conversion of the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals.

    Comments on the NPRM were due on or before June 9, 2016. The details of North Carolina's submittals and the rationale for EPA's actions are explained in the NPRM. II. Response to Comments

    EPA received one adverse comment submission, from DAQ, on the May 10, 2016, NPRM to approve, in part, and disapprove, in part, changes to North Carolina's SIP-approved NSR permitting regulations. The comment submission is available in the docket for this final rulemaking action.

    In its comments, DAQ objects to EPA's proposed disapproval of the PM2.5 increment-related portions of paragraphs (e), (q) and (v) of North Carolina's PSD rule 15A NCAC 02D .0530 for failing to incorporate the definitions of “major source baseline date,” “minor source baseline date,” and “baseline area” as found in EPA's 2010 PSD PM2.5 Rule. DAQ contends that EPA's proposed disapproval of North Carolina's PM2.5 increment provisions fails to properly account for the decision by the United States Court of Appeals for the District of Columbia (D.C. Circuit) in Natural Resource Defense Council v. EPA, 706 F.3d 428 (D.C. Cir., 2013) (NRDC), where the Court determined that PM2.5 is not a new pollutant, but rather is encompassed by the statutory definition of the pollutant PM10. According to DAQ, North Carolina's regulations, which incorporate by reference the prior federal definitions applicable to “particulate matter” (rather than the definitions applicable to PM2.5 promulgated in EPA's 2010 PSD PM2.5 Rule), are consistent with the Clean Air Act (CAA or Act) and NRDC and can be approved into the SIP as written. For the same reason, DAQ also objects to EPA's proposed disapproval of the PSD elements of seven infrastructure SIP submittals. DAQ's comments incorporate by reference the following documents: (1) Opening Brief of Petitioner in North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated October 9, 2014; (2) Reply Brief of Petitioner for North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated February 10, 2015; and (3) letter from John Skvarla (North Carolina Department of Environment and Natural Resources 3 ) to Gina McCarthy (EPA), dated August 22, 2013.

    3 The North Carolina Department of Environment and Natural Resources is now the North Carolina Department of Environmental Quality.

    The legal briefs attached to DAQ's comments were filed in the D.C. Circuit by the State of North Carolina in support of the State's consolidated petitions for review of EPA's 2010 PSD PM2.5 Rule and of EPA's denial of the State's administrative petition for reconsideration of the PSD PM2.5 Rule. In the briefs, the State challenged the 2010 PSD PM2.5 Rule on the basis that the rule improperly set new baseline dates for calculating PM2.5 increment consumption rather than using the pre-existing particulate matter baseline dates set forth in the CAA. EPA filed a Response Brief in that case disputing the legal arguments in the briefs that DAQ has now submitted to support its comments on this SIP rule. The D.C. Circuit dismissed both of North Carolina's petitions for review as untimely. See North Carolina v. EPA, 614 Fed. Appx. 517, 2015 U.S. App. LEXIS 16246 (D.C. Cir. 2015).

    The August 22, 2013, letter from John Skvarla that DAQ attached to its comments was sent by North Carolina to EPA prior to the D.C. Circuit litigation and raised the same concern regarding the PM2.5 increment baseline dates in the 2010 PSD PM2.5 Rule that North Carolina raised in the D.C. Circuit litigation. EPA responded to the April 22, 2013, letter from Secretary Skvarla to Administrator McCarthy in conjunction with EPA's August 28, 2014, response to the State's petition for EPA to reconsider or revise the 2010 PSD PM2.5 Rule.

    In response to DAQ's comments, EPA notes that DAQ does not claim that North Carolina's PM2.5 increment provisions satisfy the relevant federal criteria for state PSD programs set forth at 40 CFR 51.166 (as promulgated in the 2010 PSD PM2.5 Rule). Rather, DAQ's opposition to EPA's proposed disapproval of North Carolina's PM2.5 increment provisions is based entirely on DAQ's claim that the federal PM2.5 increment baseline provisions set forth at 40 CFR 51.166 are unlawful. In determining whether to approve North Carolina's PM2.5 increment submittal, however, EPA considers only whether North Carolina's proposed SIP revision satisfies the minimum federal criteria set forth at 50 CFR 51.166 and other requirements governing SIP revisions. EPA's action on North Carolina's submittal does not reopen for comment EPA's determination of the appropriate PM2.5 increment baselines for SIP-approved PSD programs, which were established in the final 2010 PSD PM2.5 Rule published in the Federal Register on October 20, 2010 (75 FR 64864).

    Under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), any petition for review of the 2010 PSD PM2.5 Rule had to be filed in the D.C. Circuit within 60 days of EPA's publication of the rule in the Federal Register, unless such petition is based solely on grounds arising after the 60th day, in which case the petition had to be filed within 60 days after such grounds arose. As the D.C. Circuit explained in dismissing North Carolina's petition for review of the 2010 PSD PM2.5 Rule, North Carolina missed the statutory deadline for filing a petition for review of the PM2.5 increment baseline provisions set forth in that Rule and did not file its court challenge within 60 days of the NRDC court decision that the State alleged to establish “after arising” grounds for such a challenge. See North Carolina, 614 Fed. Appx. at 517.4

    4 In the D.C. Circuit litigation, North Carolina argued that the 2013 NRDC decision constituted grounds arising after the 60th day following EPA's publication of the 2010 PSD PM2.5 Rule in the Federal Register, and therefore started a new 60-day period during which North Carolina could petition the D.C. Circuit to review the 2010 PM2.5 PSD Rule. North Carolina, 614 Fed. Appx. at 518. The D.C. Circuit found that even if NRDC constituted after-arising grounds, “North Carolina brought its petition more than ten months after [the Court] issued NRDC—well outside of the sixty-day window for petitions that the after-arising grounds exception [in CAA section 307(b)] provides.” Id. Therefore, the Court concluded: “Even assuming, without deciding, that NRDC constituted after-arising grounds, North Carolina's petition is thus still untimely.” Id.

    Based on its view of the NRDC court decision, North Carolina separately petitioned EPA to reconsider or revise the baseline date in the 2010 PSD PM2.5 Rule and subsequently challenged EPA's response to that petition in the D.C. Circuit. EPA determined that revision of the baseline dates for PM2.5 in the 2010 rule was not appropriate or compelled by the court decision cited by North Carolina. EPA also considered and responded to the April 22, 2013, letter from Secretary Skvarla in the manner described above. Accordingly, EPA has already given due consideration to the concern raised by North Carolina in its comment regarding the content of the EPA regulations. The Court upheld EPA's response to the State's petition to change the rule. 614 Fed. Appx. at 519.

    Thus, the legal issues raised by North Carolina concerning the content of EPA's regulations are settled and not open to reconsideration in this action regarding North Carolina's SIP submittal. For purposes of this action, the PM2.5 increment baseline provisions for SIP-approved state PSD programs set forth in 40 CFR 51.166 are final and effective for all states, including North Carolina. EPA is required to apply its regulations as they are presently written. See, e.g., 78 FR 63883, 63885 (Oct. 25, 2013) (EPA action on the Utah SIP based on the terms of the current version of 40 CFR 51.166). Accordingly, DAQ's comments regarding alleged defects in the PM2.5 increment baseline dates established in the 2010 PSD PM2.5 Rule (including arguments made in attachments to DAQ's comment submission) are not relevant to EPA's determination in this final action of whether the PM2.5 increment provisions in North Carolina's September 5, 2013, SIP submittal are approvable.

    To be federally-approvable, North Carolina's PM2.5 increment provisions must meet the requirements of 40 CFR 51.166 unless North Carolina can demonstrate that it has alternative measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA. See 40 CFR 51.166(c)(2). Specifically regarding the definitions of key terms set forth at 40 CFR 51.166(b), the regulations state that “[a]ll State plans shall use” these definitions, unless “the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects” as the federal definition. See 40 CFR 51.166(b). As EPA explained in the NPRM, North Carolina's PM2.5 increment provisions at 15A NCAC 02D .0530 do not incorporate the federally required definitions of “major source baseline date,” “minor source baseline date,” and “baseline area.” Nor has North Carolina demonstrated—or even claimed—that alternative definitions in the State's plan are more stringent, or at least as stringent, as the federal definitions set forth at 40 CFR 51.166. Likewise, North Carolina has not identified measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA and would warrant approval under 40 CFR 51.166(c)(2). DAQ's comments do not refute EPA's determination that North Carolina's PM2.5 increment provisions are not in compliance with 40 CFR 51.166. Therefore, EPA disagrees with DAQ's comment that North Carolina's rules can be approved into the SIP as written.

    III. Incorporation by Reference

    In this rule, EPA is including in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference portions of North Carolina's regulations 15A NCAC 02D .0530 and 15A NCAC 02D .0531, entitled “Prevention of Significant Deterioration” and “Sources in Nonattainment Areas,” effective September 1, 2013. 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 to the SIP compilation.5 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    5 62 FR 27968 (May 22, 1997).

    IV. Final Actions

    EPA is approving, in part, and disapproving, in part, changes to the North Carolina SIP provided by the DAQ to EPA on May 16, 2011, (two submittals) and September 5, 2013. These changes modify North Carolina's NSR permitting regulations codified at 15A 02D .0530—Prevention of Significant Deterioration and 15A NCAC 02D.0531—Sources in Nonattainment Areas, and include the adoption of some federal requirements respecting implementation of the PM2.5 NAAQS through the NSR permitting program. Specifically, EPA is approving the State's changes as they relate to the requirements to comply with EPA's 2008 NSR PM2.5 Implementation Rule (provided in the first May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal) and the State's miscellaneous changes as described in Section III.C. of the NPRM (provided in the second May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal). EPA is disapproving North Carolina's September 5, 2013, SIP submittal as it relates to the requirements to comply with EPA's 2010 PSD PM2.5 Rule. The versions of 15A NCAC 02D .0530 (PSD) and 15A NCAC 02D .0531 (NNSR) that became effective in the State on September 1, 2013, will be incorporated into North Carolina's SIP, with the exception of the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5 increments. EPA is approving the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM10.6 As a result of the disapproval of a portion of the State's NSR requirements, EPA also is disapproving the PSD elements of the North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO2, 2010 NO2 and the 2012 PM2.5 NAAQS; and is converting the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals.

    6 As explained in the NPRM (81 FR at 28803, fn. 17), the revisions to paragraphs (e), (q), and (v) provided in North Carolina's September 5, 2013, SIP submittal include PM10 increment provisions in addition to PM2.5 provisions. Prior to these rule changes, North Carolina had incorporated the PM10 increments into 15A NCAC 02D .0530 by reference to the CFR. North Carolina's decision to write the PM10 increment requirements directly into its rule rather than to incorporate them by reference does not change the applicable SIP requirements with respect to PM10 increments.

    North Carolina did not submit its PM2.5 increment provisions or its infrastructure SIPs to meet requirements for Part D of the CAA or a SIP call; therefore, EPA's final action to disapprove North Carolina's PM2.5 increment provisions and to partially disapprove the PSD portions of the State's infrastructure SIP submittals does not trigger sanctions. However, this final disapproval action does trigger the requirement under section 110(c) for EPA to promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency through a SIP revision and EPA approves the SIP revision before EPA promulgates such a FIP.7

    7 EPA expects North Carolina sources that are subject (or become subject) to PSD requirements to continue complying with federal PM2.5 increment requirements following this disapproval action, including use of the federally required baseline dates for calculating PM2.5 increment consumption.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submittal 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 submittals, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action approves, in part, and disapproves, in part, state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. EPA is determining that the PSD portion of some of the aforementioned SIP submittals do not meet federal requirements. For that reason, this action:

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

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

    Dated: September 6, 2016. V. Anne Heard, Acting 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 II—North Carolina 2. Section 52.1770 is amended by: a. In paragraph (c), Table 1, under Subchapter 2D, Section .0500, revising the entries for “Sect .0530” and “Sect .0531”. b. In paragraph (e), adding entries for “110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2008 Lead NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS” and “110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS” at the end of the table.

    The revisions and additions read as follows:

    § 52.1770 Identification of plan.

    (c) * * *

    Table 1—EPA Approved North Carolina Regulations State citation Title/subject State effective date EPA approval date Explanation Subchapter 2D Air Pollution Control Requirements *         *         *         *         *         *         * Section .0500 Emission Control Standards *         *         *         *         *         *         * Sect .0530 Prevention of Significant Deterioration 9/1/2013 Disapproved the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5 increments. Sect .0531 Sources in Nonattainment Areas 9/1/2013 9/14/2016, [Insert citation of publication in Federal Register] *         *         *         *         *         *         *

    (e) * * *

    EPA-Approved North Carolina Non-Regulatory Provisions Provision State effective date EPA Approval date Federal Register citation Explanation *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter NAAQS 4/1/2008 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter NAAQS 9/21/2009 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for the 2008 Lead NAAQS 6/15/2012 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone NAAQS 11/2/2012 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS 8/23/2013 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS 3/18/2014 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS 12/4/2015 9/14/2016 [Insert citation of publication in Federal Register] Partially approve the PSD elements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule.
    § 52.1773 [Removed and Reserved]
    3. Section 52.1773 is removed and reserved.
    [FR Doc. 2016-21994 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0790; FRL-9951-64-OAR] RIN 2060-AS10 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule; notice of final action on reconsideration.

    SUMMARY:

    This action sets forth the Environmental Protection Agency's (EPA's) final decision on the issues for which it announced reconsideration on January 21, 2015, that pertain to certain aspects of the February 1, 2013, final amendments to the “National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers” (Area Source Boilers Rule). The EPA is retaining the subcategory and separate requirements for limited-use boilers, consistent with the February 2013 final rule. In addition, the EPA is amending three reconsidered provisions regarding: The alternative particulate matter (PM) standard for new oil-fired boilers; performance testing for PM for certain boilers based on their initial compliance test; and fuel sampling for mercury (Hg) for certain coal-fired boilers based on their initial compliance demonstration, consistent with the alternative provisions for which comment was solicited in the January 2015 proposal. The EPA is making minor changes to the proposed definitions of startup and shutdown based on comments received. This final action also addresses a limited number of technical corrections and clarifications on the rule, including removal of the affirmative defense for malfunction in light of a court decision on the issue. These corrections will clarify and improve the implementation of the February 2013 final Area Source Boilers Rule. In this action, the EPA is also denying the requests for reconsideration with respect to the issues raised in the petitions for reconsideration of the final Area Source Boilers Rule for which reconsideration was not granted.

    DATES:

    This final rule is effective on September 14, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0790. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA/DC, EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Docket Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Mary Johnson, Energy Strategies Group, Sector Policies and Programs Division (D243-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5025; fax number: (919) 541-5450; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Acronyms and Abbreviations. A number of acronyms and abbreviations are used in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined as follows:

    ACC American Chemistry Council AF&PA American Forest and Paper Association Btu British thermal unit CAA Clean Air Act CEMS Continuous emissions monitoring systems CFR Code of Federal Regulations CIBO Council of Industrial Boiler Owners CO Carbon monoxide CRA Congressional Review Act EGU Electric Utility Steam Generating Unit EPA U.S. Environmental Protection Agency GACT Generally available control technology HAP Hazardous air pollutant(s) Hg Mercury ICI Industrial, Commercial, and Institutional ICR Information collection request MACT Maximum achievable control technology MMBtu/hr Million British thermal units per hour NAICS North American Industrial Classification System NESHAP National Emission Standards for Hazardous Air Pollutants NRDC Natural Resources Defense Council NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act OMB Office of Management and Budget PM Particulate matter ppm Parts per million PRA Paperwork Reduction Act RFA Regulatory Flexibility Act The Court United States Court of Appeals for the District of Columbia Circuit TSM Total selected metals UMRA Unfunded Mandates Reform Act U.S.C. United States Code WWW World Wide Web

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

    I. General Information A. Does this action apply to me? B. How do I obtain a copy of this document and other related information? C. Judicial Review II. Background Information III. Summary of Final Action on Issues Reconsidered A. Definitions of Startup and Shutdown B. Alternative PM Standard for New Oil-Fired Boilers That Combust Low-Sulfur Oil C. Establishment of a Subcategory and Separate Requirements for Limited-Use Boilers D. Establishment of a Provision That Eliminates Further Performance Testing for PM for Certain Boilers Based on Their Initial Compliance Test E. Establishment of a Provision That Eliminates Further Fuel Sampling for Mercury for Certain Coal-Fired Boilers Based on Their Initial Compliance Demonstration IV. Technical Corrections and Clarifications A. Affirmative Defense for Violation of Emission Standards During Malfunction B. Definition of Coal C. Other Corrections and Clarifications V. Other Actions We Are Taking A. Request for Reconsideration of the Energy Assessment Requirement B. Request for Clarification of the Averaging Period for CO VI. Impacts Associated With This Final Rule VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Does this action apply to me?

    Categories and entities potentially affected by this reconsideration action include those listed in Table 1 of this preamble.

    Table 1—Regulated Entities Category North
  • American
  • Industrial
  • Classification
  • System
  • (NAICS) code
  • Examples of potentially regulated entities
    Any area source facility using a boiler as defined in the final rule 321
  • 11
  • Manufacturers of lumber and wood products.
  • Agriculture, greenhouses.
  • 311 Food manufacturing. 327 Nonmetallic mineral product manufacturing. 424 Wholesale trade, nondurable goods. 531 Real estate. 611 Educational services. 813 Religious, civic, professional, and similar organizations. 92 Public administration. 722 Food services and drinking places. 62 Health care and social assistance. 22111 Electric power generation.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this final action. To determine whether your facility would be affected by this final action, you should examine the applicability criteria in 40 CFR 63.11193 of subpart JJJJJJ. If you have any questions regarding the applicability of this final action to a particular entity, consult either the air permitting authority for the entity or your EPA Regional representative as listed in 40 CFR 63.13 (General Provisions).

    B. How do I obtain a copy of this document and other related information?

    The docket number for this final action regarding the Area Source Boilers Rule (40 CFR part 63, subpart JJJJJJ) is Docket ID No. EPA-HQ-OAR-2006-0790.

    In addition to being available in the docket, an electronic copy of this document will also be available on the World Wide Web (WWW). Following signature, a copy of this document will be posted at https://www3.epa.gov/ttn/atw/boiler/boilerpg.html.

    C. Judicial Review

    Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by November 13, 2016. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

    II. Background Information

    On March 21, 2011, the EPA established final emission standards for control of hazardous air pollutants (HAP) from industrial, commercial, and institutional (ICI) boilers located at area sources of HAP—the Area Source Boilers Rule (76 FR 15554). On February 1, 2013, the EPA promulgated final amendments to the Area Source Boilers Rule (78 FR 7488). Following that action, the Administrator received three petitions for reconsideration that identified certain issues that petitioners claimed warranted further opportunity for public comment.

    The EPA received a petition dated April 1, 2013, from the American Forest and Paper Association (AF&PA), on their behalf and on behalf of the American Wood Council, National Association of Manufacturers, Biomass Power Association, Corn Refiners Association, National Oilseed Processors Association, Rubber Manufacturers Association, Southeastern Lumber Manufacturers Association and the U.S. Chamber of Commerce. The EPA received a petition dated April 2, 2013, from the Council of Industrial Boiler Owners (CIBO) and the American Chemistry Council (ACC). Finally, the EPA received a petition dated April 2, 2013, from Earthjustice, on behalf of the Sierra Club, Clean Air Council, Partnership for Policy Integrity, Louisiana Environmental Action Network and the Environmental Integrity Project.

    In response to the petitions, the EPA reconsidered and requested comment on five provisions of the February 1, 2013, final amendments to the Area Source Boilers Rule. The EPA published the proposed notice of reconsideration in the Federal Register on January 21, 2015 (80 FR 2871).

    In this rulemaking, the EPA is taking final action with respect to the five issues raised by petitioners in their petitions for reconsideration on the 2013 final amendments to the Area Source Boilers Rule and for which reconsideration was granted. Section III of this preamble presents the EPA's final decision on these issues and discusses our rationale for the decisions. Additionally, the EPA is finalizing the technical corrections and clarifications that were proposed to correct inadvertent errors in the final rule and to provide the intended accuracy, clarity, and consistency. Most of the corrections and clarifications remain the same as described in the proposed notice of reconsideration on January 21, 2015, and those changes are being finalized without further discussion. However, the EPA has refined its approach to some issues in this final rule after consideration of the public comments received on the proposed notice of reconsideration. The changes are to clarify applicability and implementation issues raised by the commenters and are discussed in section IV of this preamble. For a complete summary of the comments received and our responses thereto, please refer to the document “Response to 2015 Reconsideration Comments for Industrial, Commercial, and Institutional Boilers at Area Sources: National Emission Standards for Hazardous Air Pollutants” located in the docket.

    III. Summary of Final Action on Issues Reconsidered

    The five reconsideration issues for which amendments are being finalized in this rulemaking are: (1) Definitions of startup and shutdown; (2) alternative PM standard for new oil-fired boilers that combust low-sulfur oil; (3) establishment of a subcategory and separate requirements for limited-use boilers; (4) provision that eliminates further performance testing for PM for certain boilers based on their initial compliance test; and (5) provision that eliminates further fuel sampling for Hg for certain coal-fired boilers based on their initial compliance demonstration. Each of these issues is discussed in detail in the following sections of this preamble.

    A. Definitions of Startup and Shutdown

    In the February 1, 2013, final amendments to the Area Source Boilers Rule, the EPA finalized revisions to the definitions of startup and shutdown, which were based on the time during which fuel is fired in the affected unit for the purpose of supplying steam or heat for heating and/or producing electricity or for any other purpose. Petitioners asserted that the public lacked an opportunity to comment on the amended definitions and that the definitions were not sufficiently clear. In response to these petitions, in the January 21, 2015, proposed notice of reconsideration (80 FR 2871), we solicited comment on the definitions of startup and shutdown that were promulgated in the February 2013 final rule as well as additional revisions we proposed to make to those definitions. Specifically, we proposed to revise the February 2013 definition of startup to include an alternate definition of startup. The alternate definition clarified when startup begins for new boilers to address pre-startup testing activities that are done as part of installing a new boiler and when startup ends for first-ever startups as well as startups occurring after shutdown events. The alternate definition of startup as well as the definition of shutdown incorporated a new term “useful thermal energy” to replace the term “steam and heat” to address petitioners' concerns of an ambiguous end of the startup period.

    In this action, the EPA is adopting two alternative definitions of “startup,” consistent with the proposed rule. The first definition defines “startup” to mean the first-ever firing of fuel, or the firing of fuel after a shutdown event, in a boiler for the purpose of supplying useful thermal energy for heating and/or producing electricity or for any other purpose. Under this definition, startup ends when any of the useful thermal energy from the boiler is supplied for heating, producing electricity, or any other purpose. The EPA is also adopting an alternative definition of “startup” which defines the period as beginning with the first-ever firing of fuel, or the firing of fuel after a shutdown event, in a boiler for the purpose of supplying useful thermal energy for heating, cooling, or process purposes or for producing electricity, and ending 4 hours after the boiler supplies useful thermal energy for those purposes.

    In the February 1, 2013, final rule, the EPA defined “shutdown” to mean the cessation of operation of a boiler for any purpose, and said this period begins either when none of the steam or heat from the boiler is supplied for heating and/or producing electricity or for any other purpose, or when no fuel is being fired in the boiler, whichever is earlier. The EPA received petitions for reconsideration of this definition, asking that the agency clarify the term. The EPA proposed a definition of “shutdown” in January 2015 which clarified that shutdown begins when the boiler no longer makes useful thermal energy (rather than referring to steam or heat supplied by the boiler) for heating, cooling, or process purposes or generates electricity, or when no fuel is being fed to the boiler, whichever is earlier. In this action, the EPA is adopting a definition of “shutdown” that is consistent with the proposal, with some minor clarifying revisions. “Shutdown” is defined to begin when the boiler no longer supplies useful thermal energy (such as steam or hot water) for heating, cooling, or process purposes or generates electricity, or when no fuel is being fed to the boiler, whichever is earlier. Under this definition, shutdown ends when the boiler no longer supplies useful thermal energy (such as steam or hot water) for heating, cooling, or process purposes or generates electricity, and no fuel is being combusted in the boiler.

    The EPA received several comments on the proposed definitions of “useful thermal energy,” “startup,” and “shutdown.”

    1. Useful Thermal Energy

    Several commenters supported the amended definitions of startup and shutdown that include the concept of useful thermal energy, which recognizes that small amounts of steam or heat may be produced when starting up a unit, but the amounts would be insufficient to operate processing equipment and insufficient to safely initiate pollution controls.

    One commenter requested that the EPA add the term “flow rate” to the definition of useful thermal energy, consistent with discussion in the preamble to the proposed notice of reconsideration (80 FR 2874). The EPA recognizes the importance of flow rate as a parameter for determining when useful thermal energy is being supplied by a boiler and has added this term to the definition of useful thermal energy in the final rule.

    2. Startup

    One commenter stated that work practice standards are allowed only if pollution is not emitted through a conveyance or the application of measurement methodology to a particular class of sources is not practicable, and the EPA has not stated either of these to be the case. The commenter also claimed that, because the EPA has changed and extended startup and shutdown periods, the EPA must determine that emissions measurement is impracticable during startup and shutdown as they are now defined, which the EPA has not done.

    The EPA recognizes the unique characteristics of ICI boilers and has retained the alternate definition, which incorporates the term “useful thermal energy” in the final rule, with some slight adjustments, as discussed previously. Contrary to the commenter's assertion, the EPA did make a determination under CAA section 112(h) that it is not feasible to prescribe or enforce a numeric emission standard during periods of startup and shutdown because the application of measurement methodology is impracticable due to technological and economic limitations. Specifically, the March 2011 final rule required a work practice standard for coal-fired boilers during periods of startup and shutdown. See 76 FR 15576-15577. Test methods are required to be conducted under isokinetic conditions (i.e., steady-state conditions in terms of exhaust gas temperature, moisture, flow rate) which are difficult to achieve during these periods of startup and shutdown where conditions are constantly changing. Moreover, accurate HAP data from those periods are unlikely to be available from either emissions testing (which is designed for periods of steady state operation) or monitoring instrumentation such as continuous emissions monitoring systems (CEMS) (which are designed for measurements occurring during periods other than during startup or shutdown when emissions flow are stable and consistent). Upon review of this information, the EPA determined that it is not feasible to require stack testing during periods of startup and shutdown due to physical limitations and the short duration of startup and shutdown periods. Based on these specific facts for coal-fired boilers in the boilers source category, the EPA established a separate work practice standard for startup and shutdown periods.1 The Court of Appeals recently approved the EPA's approach to developing a start-up work practice and to making a (non)feasibility determination in United States Sugar Corp v. EPA (No. 11-1108, D.C. Cir., July 29, 2016) (slip op. at 155). We continue to conclude that testing is impracticable during periods of startup and shutdown as those terms are defined in this final action. We set standards based on available information as contemplated by CAA section 112. Compliance with the numeric emission limits (i.e., PM, Hg, and carbon monoxide (CO)) is demonstrated by conducting performance stack tests. The revised definitions of startup and shutdown better reflect when steady-state conditions are achieved, which are required to yield meaningful results from current testing protocols.

    1 Coal-fired boilers are the only subcategory for which we set maximum achievable control technology (MACT)-based standards. The requisite findings under CAA section 112(h) for work practices are only necessary for the large coal-fired boiler subcategory. For large new oil-fired and biomass-fired boilers, the EPA set generally available control technology (GACT) management practice standards under CAA section 112(d)(5). The provisions of CAA section 112(h) do not apply to setting GACT standards.

    Several commenters agreed with the EPA that startup “should not end until such time that all control devices have reached stable conditions” (see 80 FR 2875, column 2), but questioned the EPA's analysis of data from electric utility steam generating units (EGUs) to determine the alternate startup definition and disagreed with the EPA's conclusion that 4 hours is an appropriate length of time for startup. The commenters stated that a work practice approach during startup and shutdown is appropriate and should be site-specific due to the many designs and applications of industrial boilers. One commenter provided information obtained from an informal survey of its members for 76 units on the time needed to reach stable conditions during startup (CIBO data).

    As stated in the January 2015 proposal, the EPA had very limited information specifically for industrial boilers on the hours needed for controls to reach stable conditions after the start of supplying useful thermal energy. However, the EPA did have information for EGUs on the hours to stable control operation after the start of electricity generation. Given that the startup provisions need to be based on “best performers,” we found that controls used on the best performing 12-percent EGUs reach stable operation within 4 hours after the start of electricity generation. Since the types of controls used on EGUs are similar to those used on industrial boilers and the start of electricity generation is similar to the start of supplying useful thermal energy, we continue to believe that the controls on the best performing industrial boilers would also reach stable operation within 4 hours after the start of supplying useful thermal energy and have included this timeframe in the final alternate definition. This conclusion was supported by the limited information (13 units) the EPA had on industrial boilers and by CIBO data (76 units).2

    2See EPA's July 2016 memorandum, “Assessment of Startup Period for Industrial Boilers,” available in the rulemaking docket (Docket ID No. EPA-HQ-OAR-2006-0790).

    One commenter suggested that the first definition of startup be revised to incorporate the term “useful thermal energy” to clarify that startup has ended when the boiler is supplying steam or heat at the proper temperature, pressure, and flow to the energy use systems being served, not immediately after supplying any amount of heat for any incidental purpose.

    The EPA has adjusted the first definition of startup to replace “steam or heat” with “useful thermal energy (such as steam or hot water)” consistent with the terminology in the alternate definition. Additionally, the term “useful thermal energy” was revised to incorporate a minimum flow rate to more appropriately reflect when the energy is provided for any primary purpose of the unit. Together, these changes alleviate the concerns of when the startup period functionally ends. Boilers should be considered to be operating normally at all times energy (i.e., steam or hot water) of the proper pressure, temperature, and flow rate is being supplied to a common header system or energy user(s) for use as either process steam or for the cogeneration of electricity.

    3. Shutdown

    Multiple commenters supported the EPA's proposed definition of shutdown. One commenter noted the revised definition's accommodation of the fact that combustion does not end when the fuel feed is turned off in a grate system because fuel remaining on a grate continues to combust although fuel has been cut off. To further clarify that the shutdown period begins when no useful steam or electricity is generated, or when fuel is no longer being combusted in the boiler, the EPA has adjusted the definition of shutdown to replace the phrase “makes useful thermal energy” to “supplies useful thermal energy.” The term “supplies” best serves the intended meaning of the definition of shutdown and, in addition, is consistent with the definition of startup.

    B. Alternative PM Standard for New Oil-Fired Boilers That Combust Low-Sulfur Oil

    In the February 1, 2013, final amendments to the Area Source Boilers Rule, the EPA added a new provision that specifies that certain new or reconstructed oil-fired boilers with heat input capacity of 10 million British thermal units per hour (MMBtu/hr) or greater that combust low-sulfur oil meet GACT for PM, providing the type of fuel combusted is monitored and recorded on a monthly basis. Specifically, the provision applies to boilers combusting only oil that contains no more than 0.50 weight percent sulfur or a mixture of 0.50 weight percent sulfur oil with other fuels not subject to a PM emission limit under this subpart and that do not use a post-combustion technology (except a wet scrubber) to reduce PM or sulfur dioxide emissions. The EPA received a petition asserting that the public lacked an opportunity to comment on the new provision for low-sulfur liquid burning boilers as well as the definition of low-sulfur liquid fuel. In response to the petition, in the January 21, 2015, proposal, we solicited comment on the February 2013 provision, as well as on (1) whether and, if so, to what extent, burning low-sulfur liquid fuels, as defined under the final rule, would control the urban metal HAP for which the category of sources was listed and for which PM serves as a surrogate (i.e., Hg, arsenic, beryllium, cadmium, lead, chromium, manganese, nickel) and (2) whether the final rule's definition of low-sulfur would allow emissions to exceed the final rule's emission limit for PM (i.e., 0.03 pound (lb)/MMBtu).

    We also solicited comment on an alternative PM standard for new oil-fired boilers that combust “ultra-low-sulfur liquid fuel,” which would be defined as fuel containing no more than 15 parts per million (ppm) sulfur, citing the threshold in the National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines (RICE NESHAP) and the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT). Specifically, we requested comment on an alternative provision to the February 2013 final rule's alternative PM standard for new oil-fired boilers that combust low-sulfur oil that would specify that new or reconstructed oil-fired boilers with heat input capacity of 10 MMBtu/hr or greater that combust only ultra-low-sulfur liquid fuel meet GACT for PM providing the type of fuel combusted is monitored and recorded on a monthly basis. We also requested comment on whether and, if so, to what extent burning ultra-low-sulfur liquid fuels (i.e., distillate oil that has less than or equal to 15 ppm sulfur) would control the urban metal HAP for which the category of sources were listed.

    In this action, the EPA is finalizing an alternative PM standard for new oil-fired boilers that combust ultra-low-sulfur liquid fuel, as described immediately above and in the January 2015 proposal, in place of the February 2013 final rule's alternative PM standard for new oil-fired boilers that combust low-sulfur oil, as discussed later in this section of the preamble.

    Several commenters agreed with the provision that specifies that boilers combusting low-sulfur oil meet GACT for PM, consistent with the exemption for low-sulfur oil burning boilers in 40 CFR part 60, subpart Dc. One commenter asserted that PM emissions from oil-fired boilers are a function of the sulfur content of the fuel and, because low-sulfur oil has lower PM than high sulfur oil, it necessarily has lower HAP as well. However, another commenter, reiterating many points made in its petition for reconsideration on this topic, asserted that the alternative PM standard for new oil-fired boilers that combust low-sulfur oil is unlawful and arbitrary because the EPA has not shown that the use of low-sulfur liquid fuels will provide meaningful reductions of the urban metal HAP for which area source boilers were listed under CAA section 112(c)(3), and, therefore, its use cannot be GACT.

    Two commenters disagreed with the alternative PM standard for new oil-fired boilers that combust low-sulfur oil, as defined in the Area Source Boilers Rule (i.e., oil that contains no more than 0.50 weight percent sulfur). The commenters suggested that fuel oils with a sulfur content of 0.50 weight percent correspond to residual oils, which are associated with higher HAP emissions. The commenters claimed that the rule's definition of low sulfur is too lenient and that boilers combusting fuel oils with 0.50 weight percent sulfur may have PM emissions that exceed the PM emission limit. One of the commenters provided data showing a range of PM emissions between 0.035 to 0.062 lb/MMBtu for four boilers burning oil containing 0.5 weight percent sulfur. On the contrary, one commenter provided graphs of PM emissions data for oil-fired boilers indicating that most of the PM emissions from the boilers burning #2 oil were below the PM emission limit of 0.03 lb/MMBtu.

    Several commenters supported an alternative PM standard for new oil-fired boilers combusting ultra-low-sulfur fuels containing no more than 15 ppm sulfur. Another commenter argued that the EPA must show that the use of ultra-low-sulfur liquid fuels will substantially reduce emissions of the urban metal HAP for which area source boilers were listed. The commenter noted that the EPA's finding that use of ultra-low-sulfur fuel significantly reduces emissions of hazardous metals when used in engines, as referenced in the January 2015 proposal, does not support such a conclusion with regard to use of ultra-low-sulfur fuel in area source boilers.

    Based on our review of data in the record, additional data obtained from public sources, and public comments, the EPA is finalizing an alternative PM standard that specifies that new or reconstructed oil-fired boilers with heat input capacity of 10 MMBtu/hr or greater that combust only ultra-low-sulfur liquid fuel meet GACT for PM providing the type of fuel combusted is monitored and recorded on a monthly basis. If the source intends to burn a fuel other than ultra-low-sulfur liquid fuel or gaseous fuels as defined in 40 CFR part 63, subpart JJJJJJ, they are required to conduct a performance test within 60 days of burning the new fuel. New or reconstructed oil-fired boilers that commenced construction or reconstruction on or before publication of this final action and that are currently meeting the alternative PM standard for low-sulfur oil burning boilers are provided 3 years from publication of this action before becoming subject to the PM emission limit, providing them time to decide how to comply (i.e., combust only ultra-low-sulfur liquid fuel or conduct a performance test demonstrating compliance).

    We have determined that PM emissions from boilers firing liquid fuels containing 0.50 weight percent sulfur as allowed under the February 2013 alternative PM standard may exceed the Area Source Boilers Rule PM limit for oil-fired boilers of 0.03 lb/MMBtu, but that PM emissions from boilers firing liquid fuels containing equal to or less than 15 ppm sulfur (i.e., ultra-low-sulfur liquid fuel) will not exceed the PM limit. A review of information regarding liquid fuel sulfur content and PM emissions levels in the records for the boiler rules found that of the 10 liquid fuel area source boilers that reported PM emissions that exceeded the PM limit in their information collection request (ICR) responses, none fired liquid fuel with sulfur content less than 15 ppm. However, one boiler with emissions exceeding the PM limit (i.e., 0.061 lb/MMBtu) reported that the level of sulfur in their fuel was 0.2 weight percent, a level that is above 15 ppm (0.0015 weight percent), but below the low-sulfur liquid fuel threshold of 0.50 weight percent in the 2013 final rule. Based on these data, along with comments indicating that boilers burning oil containing 0.50 percent sulfur can emit PM at levels above the PM limit, the EPA concludes that the rule's definition of low-sulfur (i.e., 0.50 weight percent) would potentially allow emissions exceeding the PM emission limit, but that boilers burning oil containing no more than 15 ppm sulfur would not emit PM at levels above the PM limit.

    In addition, we have determined that burning ultra-low-sulfur liquid fuel controls urban metal HAP. The ultra-low-sulfur liquid fuel threshold of 15 ppm sulfur we are adopting in the final Area Source Boilers Rule is consistent with the sulfur threshold in the Boiler MACT that allows for a reduced PM (or, alternatively, total selected metals (TSM)) testing frequency for light liquid boilers. Further, the PM emission limit for light liquid boilers at major sources is significantly lower than the limit for area source oil-fired boilers (0.0079 lb/MMBtu (existing units) and 0.0011 lb/MMBtu (new units) instead of 0.03 lb/MMBtu). A review of available information for major source boilers burning ultra-low-sulfur liquid fuel identified one major source facility that reported fuel analyses for TSM (i.e., arsenic, beryllium, cadmium, chromium, lead, manganese, nickel, and selenium) and Hg, and those fuel analyses showed that each boiler had TSM and Hg emissions below detection limits and the applicable Boiler MACT TSM and Hg emission limits. The fact that boilers burning ultra-low-sulfur liquid fuel have the ability to meet the TSM and Hg limits based on the best-performing major source boilers provides sound support for our determination that the use of ultra-low-sulfur liquid fuel in area source boilers will reduce emissions of urban metal HAP.

    A detailed discussion of our findings is included in the “Response to 2015 Reconsideration Comments for Industrial, Commercial, and Institutional Boilers at Area Sources: National Emission Standards for Hazardous Air Pollutants” located in the docket.

    C. Establishment of a Subcategory and Separate Requirements for Limited-Use Boilers

    In the February 1, 2013, final amendments to the Area Source Boilers Rule, the EPA established a limited-use boiler subcategory that includes any boiler that burns any amount of solid or liquid fuels and has a federally enforceable average annual capacity factor of no more than 10 percent. Separate requirements for this subcategory of boilers that operate on a limited basis were also established. Specifically, limited-use boilers are required to complete a tune-up every 5 years. The EPA received a petition asserting that the public lacked an opportunity to comment on the new limited-use boiler subcategory, as well as the tune-up requirement established for the new subcategory. In response to the petition, in the January 21, 2015, proposal, we solicited comment regarding whether the separate requirements for a limited-use boiler subcategory are necessary or appropriate. The EPA is retaining the limited-use boiler subcategory and its separate requirements, as discussed later in this section of the preamble.

    Multiple commenters agreed that separate requirements for limited-use boilers are appropriate. One commenter asserted that limited-use boilers qualify for subcategorization due to unique operating characteristics that merit class and type distinctions allowed under CAA section 112(d)(1). Two commenters explained that these units spend a larger percentage of time starting up and shutting down than regular-use boilers which causes their emissions profiles to be different, and many pollution control technologies are difficult to use or ineffective during startup and shutdown and would be cost-prohibitive to install and use. One commenter stated that the designation of a limited-use boiler subcategory is appropriately consistent with the similar subcategory for seasonal boilers. Several commenters stated that a limited-use boiler subcategory is appropriately consistent with the similar limited-use subcategory in the Boiler MACT.

    Multiple commenters supported the 5-year tune-up requirement for limited-use boilers. Two commenters stated that it would be illogical to require such boilers to comply with the same tune-up schedule as other boilers, which is every 2 years, given their limited operational time and intermittent operating schedules. One commenter claimed that more frequent tune-ups would not provide any meaningful environmental benefits given the limited operating profiles of limited-use units, noting that despite the 5-year tune-up frequency, limited-use boilers will still conduct tune-ups after less operating time than boilers in other subcategories.

    One commenter objected to the EPA's decision to create a separate subcategory for these boilers and for requiring nothing more than one tune-up every 5 years for these boilers. The commenter stated that the limited-use boilers subcategory is unlawful and arbitrary because the EPA is not distinguishing between different classes, types, or sizes of sources and has not explained why boilers operating for fewer total hours during the year is a distinction that requires differential treatment. The commenter further stated that infrequent tune-ups are neither a control technology nor a management practice that will reduce emissions and that nothing in the record demonstrates that the requirement to conduct a tune-up every 5 years will actually reduce emissions of HAP. The commenter asserted that in light of the determination that more frequent tune-ups are GACT for other area boilers, it is unlawful and arbitrary for the EPA to require tune-ups for limited-use boilers only every 5 years.

    The EPA has retained the subcategory and separate requirements for limited-use boilers as finalized in the February 2013 final rule. We disagree with the comments objecting to the limited-use boiler subcategory and the requirement that limited-use boilers complete a tune-up every 5 years. The EPA has concluded that limited-use boilers are a unique class of unit based on the unique way in which they are used (i.e., they operate for unpredictable periods of time, limited hours, and at less than full load in many cases) and has determined that regulating these units with periodic tune-up work practice and management practice requirements will limit HAP by ensuring that these units operate at peak efficiency during the limited hours that they do operate. In the preamble to the June 4, 2010, proposed standards for area source boilers, the EPA explained that a boiler tune-up provides potential savings from energy efficiency improvements and pollution prevention, and that improvement in energy efficiency results in decreased fuel use which results in a corresponding decrease in emissions (both HAP and non-HAP) from the boiler (75 FR 31908). Specifically, for any boiler conducting a tune-up, a 1-percent gain in combustion efficiency was estimated, resulting in an estimated 1-percent emissions reduction of all pollutants.3

    3 “Revised Methodology for Estimating Impacts from Industrial, Commercial, Institutional Boilers at Area Sources of Hazardous Air Pollutant Emissions” (Docket entry: EPA-HQ-OAR-2006-0790-2314).

    The EPA continues to conclude, as previously stated in the February 2013 final rule, that establishing a limited-use subcategory was reasonable. First, we pointed out that it is technically infeasible to test these limited-use boilers since these units serve as back-up energy sources and their operating schedules can be intermittent and unpredictable. Next, we pointed out that boilers that operate no more than 10 percent of the year (i.e., a limited-use boiler) would operate for no more than 6 months in between tune-ups on a 5-year tune-up cycle. We then explained that the brief period of operations for these limited-use boilers is even less than the number of operating months that seasonal boilers and full-time boilers will operate between tune-ups. Finally, we noted that the irregular schedule of operations also makes it difficult to schedule more frequent tune-ups.

    D. Establishment of a Provision That Eliminates Further Performance Testing for PM for Certain Boilers Based on Their Initial Compliance Test

    In the February 1, 2013, final amendments to the Area Source Boilers Rule, the EPA added a new provision that specifies that further PM emissions testing does not need to be conducted if, when demonstrating initial compliance with the PM emission limit, the performance test results show that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit. The EPA received a petition asserting that the public lacked opportunity to comment on the new provision that eliminates further performance testing for PM for certain boilers based on their initial compliance test. In response to the petition, in the January 21, 2015, proposal, we solicited comment on the February 2013 provision, specifically requesting comment and supporting information on the magnitude and range of variability in PM and urban metal HAP emissions from individual boilers. More specifically, we requested comment on whether the emissions variability at an individual boiler could result in an exceedance of the PM limit by such boiler whose PM emissions are demonstrated to be equal to or less than half of the PM emission limit (i.e., a doubling or more of PM emissions). We also requested comment on whether a requirement to burn only the fuel types and mixtures used to demonstrate that a boiler's PM emissions are equal to or less than half of the PM limit would limit PM emissions variability.

    The EPA also solicited comment on an alternative provision that would specify less frequent performance testing for PM based on the initial compliance test. Instead of eliminating further PM performance testing, the alternative provision would specify that when demonstrating initial compliance with the PM emission limit, if the performance test results show that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit, additional PM emissions testing would not need to be conducted for 5 years. We stated that, in such instances, the owner or operator would be required to continue to comply with all applicable operating limits and monitoring requirements. We requested comment on also including a requirement that the owner or operator only burn the fuel types and fuel mixtures used to demonstrate that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit.

    In this action, the EPA is finalizing the alternative provision that requires further PM performance testing every 5 years for certain boilers based on their initial compliance test, as described immediately above and in the January 2015 proposal, in place of the February 2013 final rule's provision that eliminated further PM performance testing for such boilers, as discussed later in this section of the preamble. As also discussed in this section of the preamble, we are finalizing a requirement that a PM performance test must be conducted if the owner or operator decides to use a fuel type, other than ultra-low-sulfur liquid fuel or gaseous fuels, that was not used when demonstrating that the PM emissions from their boiler were equal to or less than half of the PM emission limit.

    Several commenters agreed with the provision that eliminates further PM performance testing when initial compliance tests show that PM emissions are equal to or less than half of the limit and that requires the owner or operator to continue to comply with all applicable operating limits and monitoring requirements. One commenter agreed with the provision eliminating further PM performance testing as long as the owner or operator is required to burn only the fuel types and mixtures used during the initial testing. Two commenters noted that the provision promotes good PM performance from new boilers while acknowledging that some boilers are inherently low-emitting and should be spared the expense of ongoing performance testing where operations remain consistent. One commenter stated that by setting the threshold at equal to or less than half of the emission limit, there is sufficient buffer against the limit to account for any variability in emission levels, and added that because the unit must continue to comply with operating limits and monitoring requirements, there are safeguards to ensure there are no changes in operation of the boiler or air pollution control equipment that could increase emissions. Another commenter claimed that the provision is in line with other MACT standards and new source performance standards (NSPS) which require only one initial performance test unless there is a physical change to the control device, and added that HAP emissions change only when operating parameters change or when design changes occur.

    Two commenters objected to the provision that eliminates further PM performance testing when initial compliance tests show that PM emissions are equal to or less than half of the limit. One commenter claimed that there are no requirements to prevent the facility from changing the fuel type and fuel mixture from those used in the initial compliance testing and a change in fuel type or mixture could result in an increase in PM emissions. Another commenter asserted that it is arbitrary to conclude that a source that measures low emissions in one test will have emissions below the limit thereafter. The commenter claimed that many boilers burn combinations of fuels of varying proportions (e.g., biomass and coal), and because sources are allowed to change their fuel mix within a given fuel type and to change their fuel supplier without changing subcategories, PM emissions from an individual source are likely to be highly variable. The commenter further noted that the EPA has routinely acknowledged the variability inherent in industrial boiler emissions, and that EPA data demonstrate that PM emissions from boilers are highly variable.

    For the same reasons, these two commenters also objected to the alternative provision that would require less frequent (once every 5 years) PM performance testing when initial compliance tests show that PM emissions are equal to or less than half of the limit in lieu of totally eliminating further PM performance testing. One commenter, however, provided an alternative recommendation that eliminates further PM testing as long as sources whose initial compliance testing showed PM emissions equal to or less than half of the limit continue to combust the same fuel type and mixture used during the initial compliance testing. Under the commenter's alternative, if the source elects to change the fuel type or mixture being combusted, the source would be required to demonstrate compliance with the PM emission limit no more than 60 days after the change in fuel type or mixture.

    Based on our review of the public comments and data available on PM and metallic HAP emissions for which PM serves as a surrogate, the EPA is finalizing the provision that specifies that further PM emissions testing does not need to be conducted for 5 years if, when demonstrating initial compliance with the PM emission limit, the performance test results show that the PM emissions from the affected boiler are equal to or less than half of the applicable PM emission limit. In such instances, the owner or operator would be required to continue to comply with all applicable operating limits and monitoring requirements. If the source burns a new type of fuel other than ultra-low-sulfur liquid fuel or gaseous fuels, then a new performance test is required within 60 days of burning the new fuel type. New or reconstructed boilers that commenced construction or reconstruction on or before publication of this final action and that previously demonstrated that their PM emissions were equal to or less than half of the PM emission limit are provided 5 years from publication of this action before they are required to conduct a performance test unless a new type of fuel, other than ultra-low-sulfur liquid fuel or gaseous fuels, is burned. In that situation, a new performance test is required within 60 days of burning the new fuel type. Boilers with test results that show that PM emissions are greater than half of the PM emission limit are required to conduct PM testing every 3 years.

    We have concluded that a provision that reduces the frequency of testing, rather than eliminates further testing, is more appropriate and environmentally protective for long-term compliance with the PM emission limit, but still provides compliance flexibility for low-emitting boilers. A review of PM emissions information in the records for the boiler rules identified several instances where PM emissions variability at an individual major source boiler was such that the minimum test average was below half of the Area Source Boilers Rule PM emission limit and the maximum test average was above the emission limit. Specifically, of 40 coal-fired major source boilers with multiple PM test events, four had such an instance. An investigation into urban metal HAP emission variability informed the EPA that metallic HAP emissions from individual boilers, for which PM serves as a surrogate, can vary and further supports our conclusion that periodic testing is necessary to provide compliance assurance that changes in operation of the boiler or air pollution control equipment have not increased PM emissions. Examination of the variability in non-Hg metallic HAP emissions at individual boilers showed average ratios of maximum emission rates to minimum emission rates for major source boilers with multiple test results for TSM to be 2.79 for biomass-fired boilers and 2.55 for coal-fired boilers, and showed emission ratios for cadmium and lead for several biomass-fired area source boilers with multiple test results that ranged from 1.00 to 7.28 for cadmium and 1.00 to 6.40 for lead. Because PM is a surrogate for Hg for biomass- and oil-fired area source boilers, Hg variability at individual boilers was also examined, showing emission ratios of 4.6 for an area source biomass-fired boiler with multiple Hg fuel analysis samples and 3.2 and 16.2 for area source biomass-fired boilers with multiple Hg performance tests.

    The January 2015 proposal requested comment on whether a requirement to burn only the fuel types and mixtures used to demonstrate that a boiler's PM emissions are equal to or less than half of the PM limit would limit PM emissions variability and also requested comment on including such a requirement. For the same reasons the EPA concluded that periodic testing (i.e., every 5 years) for these low-emitting boilers is necessary to provide long-term compliance assurance (i.e., the intra-unit variability in PM and metal HAP emissions identified based on a review of the public comments and available data), we have concluded that introduction of a new fuel type, other than ultra-low-sulfur liquid fuel or gaseous fuels, in between the 5-year tests requires a new performance test within 60 days of burning a new fuel type. 40 CFR 63.11212(c) requires that performance stack tests be conducted while burning the type of fuel or mixture of fuels that have the highest emissions potential for each regulated pollutant. The burning of a new fuel type, whether alone or in a mixture of fuels, could potentially increase emissions. Thus, we believe that this new requirement to test when a new fuel type is burned, along with the requirement in 40 CFR 63.11212(c) to test while burning the type of fuel or mixture of fuels that have the highest emissions potential, will limit PM emissions variability.

    A detailed discussion of our findings is included in the “Response to 2015 Reconsideration Comments for Industrial, Commercial, and Institutional Boilers at Area Sources: National Emission Standards for Hazardous Air Pollutants” located in the docket.

    E. Establishment of a Provision That Eliminates Further Fuel Sampling for Mercury for Certain Coal-Fired Boilers Based on Their Initial Compliance Demonstration

    In the February 1, 2013, final amendments to the Area Source Boilers Rule, the EPA added a new provision that specifies that further fuel analysis sampling does not need to be conducted if, when demonstrating initial compliance with the Hg emission limit based on fuel analysis, the Hg constituents in the fuel or fuel mixture are measured to be equal to or less than half of the Hg emission limit. The EPA received a petition asserting that the public lacked an opportunity to comment on the new provision that eliminates further fuel sampling for Hg for certain coal-fired boilers based on their initial compliance demonstration. In response to the petition, in the January 21, 2015, proposal, we solicited comment on the February 2013 provision, specifically requesting comment and supporting information on the magnitude and range of variability in Hg content in coal that is likely to be combusted in an individual boiler. More specifically, we requested comment on whether the variability within a specific fuel type or fuel mixture could result in an exceedance of the Hg limit by a boiler in the coal subcategory whose Hg content in their fuel or fuel mixture are demonstrated to be equal to or less than half of the Hg emission limit (i.e., a doubling or more of Hg emissions).

    The EPA also solicited comment on an alternative provision that would specify less frequent fuel analysis sampling for Hg based on the initial compliance demonstration. Instead of eliminating further fuel analysis sampling for Hg, the alternative provision would specify that when demonstrating initial compliance with the Hg emission limit based on fuel analysis, if the Hg constituents in the fuel or fuel mixture are measured to be equal to or less than half of the Hg emission limit, additional fuel analysis sampling for Hg would not need to be conducted for 12 months. We stated that, in such instances, the owner or operator would be required to continue to comply with all applicable operating limits and monitoring requirements, which include only burning the fuel types and fuel mixtures used to demonstrate compliance and keeping monthly records of fuel use.

    In this action, the EPA is finalizing the alternative provision that requires further fuel analysis sampling for Hg every 12 months for certain coal-fired boilers based on their initial compliance demonstration, as described immediately above and in the January 2015 proposal, in place of the February 2013 final rule's provision that eliminated further fuel analysis sampling for Hg for such boilers, as discussed later in this section of the preamble.

    Three commenters agreed with the provision that eliminates further fuel sampling for Hg for coal-fired boilers when initial compliance demonstrations based on fuel analysis show that the Hg constituents in their fuel or fuel mixture are equal to or less than half of the Hg emission limit and that requires the owner or operator to continue to comply with all applicable operating limits and monitoring requirements. Two commenters stated that the coal Hg content data in the EPA's Boiler MACT survey database support the provision in that the majority of the data is lower than the Hg emission limit for area source coal-fired boilers. The commenters noted that the provision promotes use of low-mercury coal, one stating that the Hg content in petroleum coke has very little variability and referencing a particular facility where the Hg content is well below the Hg limit. One commenter further stated that the provision eliminates unnecessary reporting without compromising the environmental and health benefits of the Area Source Boilers Rule. Another commenter noted that for units complying with the Hg limit, subsequent fuel analysis would not provide additional useful information, is unnecessary, and the costs are unwarranted.

    One commenter supported the alternative provision that would require less frequent (once every 12 months) fuel analysis sampling for Hg when initial compliance demonstrations based on fuel analysis show that the Hg constituents in the fuel or fuel mixture are equal to or less than half of the limit in lieu of totally eliminating further fuel sampling for Hg.

    One commenter objected to a provision that eliminates or reduces further fuel sampling for Hg when initial compliance demonstrations based on fuel analysis show that the Hg constituents in the fuel or fuel mixture are equal to or less than half of the limit. The commenter asserted that because the EPA has promulgated MACT standards for coal-fired boilers at area sources, it is arbitrary and unlawful to not require monitoring sufficient to assure compliance with the standards. The commenter further asserted that a single fuel analysis showing Hg content at or below half of the limit does not assure compliance with the standard in perpetuity, particularly in light of the high variability of the Hg content of the fuels burned. The commenter added that sources are allowed to burn highly non-homogenous fuels without changing subcategories, which enables a high degree of variability in emissions, and that many coal-fired boilers co-fire biomass of varying proportions. The commenter included their analysis of EPA fuel analysis data for major and area source boilers that shows that 22.5 percent of sources experienced sufficient variability in the Hg content of their coal to obtain a result in one fuel analysis low enough to exempt them from any future fuel sampling, while another analysis at the same facility exceeds the provision's Hg content limit. The commenter asserted that biomass fuels also have a large range of variability in Hg content.

    Based on our review of the public comments and the data available for quantifying variability in coal Hg content, the EPA is finalizing the provision that specifies that further fuel analysis sampling for Hg does not need to be conducted for 12 months if, when demonstrating initial compliance with the Hg emission limit based on fuel analysis, the Hg constituents in the fuel or fuel mixture are measured to be equal to or less than half of the Hg emission limit. New or reconstructed boilers that commenced construction or reconstruction on or before publication of this final action and that previously demonstrated that the Hg constituents in their fuel or fuel mixture were equal to or less than half of the Hg emission limit are provided 12 months from publication of this action before they are required to conduct fuel analysis sampling for Hg. The owner or operator is required to continue to comply with all applicable operating limits and monitoring requirements, which include only burning the fuel types and fuel mixtures used to demonstrate compliance and keeping monthly records of fuel use. As specified in 40 CFR 63.11220, a fuel analysis must be conducted before burning a new type of fuel or fuel mixture. Boilers with fuel analysis results that show that Hg constituents in the fuel or fuel mixture are greater than half of the Hg emission limit are required to conduct quarterly sampling.

    A review of Hg fuel analysis data for area source coal-fired boilers informed the EPA that Hg content in coal combusted in individual boilers can vary by more than a factor of two. Specifically, of ten coal-fired boilers with multiple fuel analysis samples, four had ratios of maximum to minimum Hg emission rates that were greater than two (i.e., 2.2, 3.0, 5.8, and 11.2). In addition, two of the boilers had fuel samples with Hg content that were less than half of the emission limit but other samples with Hg content that exceeded the emission limit. Based on this information, the EPA does not believe that finalizing a provision that eliminates further fuel analysis sampling for Hg based on a single demonstration is appropriate or environmentally protective for long-term compliance, but has concluded that it is appropriate to provide some compliance flexibility by reducing periodic fuel sampling for boilers combusting coal with low Hg content to every 12 months.

    A detailed discussion of our findings is included in the “Response to 2015 Reconsideration Comments for Industrial, Commercial, and Institutional Boilers at Area Sources: National Emission Standards for Hazardous Air Pollutants” located in the docket.

    IV. Technical Corrections and Clarifications

    In the January 21, 2015, notice of reconsideration, the EPA also proposed to correct typographical errors and clarify provisions of the final rule that may have been unclear. This section of the preamble summarizes the refinements made to the proposed corrections and clarifications, as well as corrections and clarifications being finalized based on comment.

    A. Affirmative Defense for Violation of Emission Standards During Malfunction

    The EPA received numerous comments on its proposal to remove from the current rule the affirmative defense to civil penalties for violations caused by malfunctions. Several commenters supported the removal of the affirmative defense for malfunctions. Other commenters opposed the removal of the affirmative defense provision.

    First, a commenter (AF&PA) urged the EPA to publish a new or supplemental statement of basis and purpose for the proposed rule that explains (and allows for public comment on) the appropriateness of applying the boiler emission standards to malfunction periods without an affirmative defense provision.

    Second, a commenter (AF&PA) argued the affirmative defense was something that the EPA considered necessary when the current standards were promulgated; it was part of the statement of basis and purpose for the standards required to publish under CAA section 307(d)(6)(A).

    Third, commenters (CIBO/ACC) argued that the EPA should not remove the affirmative defense until the issue is resolved by the Court. Furthermore commenters (CIBO/ACC and AF&PA) argued the Natural Resources Defense Council (NRDC) Court decision that the EPA cites as the reason for eliminating the affirmative defense provisions does not compel the EPA's action to remove the affirmative defense in this rule.

    Fourth, commenters (CIBO/ACC and AF&PA) argued that without affirmative defense or adjusted standards, the final rule provides sources no means of demonstrating compliance during malfunctions.

    Fifth, commenters (CIBO/ACC, AF&PA, and Class of '85 Regulatory Response Group) urged the EPA to establish work practice standards that would apply during periods of malfunction instead of the emission rate limits, or a combination of work practices and alternative numerical emission limitations. Commenters noted that the EPA can address malfunctions using the authority Congress gave it in CAA sections 112(h) and 302(k) to substitute a design, equipment, work practice, or operational standard for a numerical emission limitation.

    The Court recently vacated an affirmative defense in one of the EPA's CAA section 112(d) regulations. NRDC v. EPA, No. 10-1371 (D.C. Cir. April 18, 2014) 2014 U.S. App. LEXIS 7281 (vacating affirmative defense provisions in the CAA section 112(d) rule establishing emission standards for Portland cement kilns). The Court found that the EPA lacked authority to establish an affirmative defense for private civil suits and held that under the CAA, the authority to determine civil penalty amounts in such cases lies exclusively with the courts, not the EPA. Specifically, the Court found: “As the language of the statute makes clear, the courts determine, on a case-by-case basis, whether civil penalties are `appropriate.' ” see NRDC, 2014 U.S. App. LEXIS 7281 at *21 (“[U]nder this statute, deciding whether penalties are `appropriate' in a given private civil suit is a job for the courts, not EPA.”). As a result, the EPA is not including a regulatory affirmative defense provision in the final rule. The EPA notes that removal of the affirmative defense does not in any way alter a source's compliance obligations under the rule, nor does it mean that such a defense is never available.

    Second, the EPA notes that the issue of establishing a work practice standard for periods of malfunctions or developing standards consistent with performance of best performing sources under all conditions, including malfunctions, was raised previously; see the discussion in the March 21, 2011, preamble to the final rule (76 FR 15560). In the most recent notice of proposed reconsideration (80 FR 2871, January 21, 2015), the EPA proposed to remove the affirmative defense provision, in light of the NRDC decision. The EPA did not propose or solicit comment on any revisions to the requirement that emissions standards be met at all times, or on alternative standards during periods of malfunctions. Therefore, the question of whether the EPA can and should establish different standards during malfunction periods, including work practice standards, is outside the scope of this final reconsideration action.

    Finally, in the event that a source fails to comply with an applicable CAA section 112(d) standard as a result of a malfunction event, the EPA's (or other delegated or approved authority's) ability to exercise its case-by-case enforcement discretion to determine an appropriate response provides sufficient flexibility in such circumstances as was explained in the preamble to the proposed rule. Further, as the Court recognized, in an EPA (or other delegated or approved authority) or citizen enforcement action, the Court has the discretion to consider any defense raised and determine whether penalties are appropriate. Cf. NRDC, 2014 U.S. App. LEXIS 7281 at *24 (arguments that violation were caused by unavoidable technology failure can be made to the courts in future civil cases when the issue arises). The same is true for the presiding officer in EPA administrative enforcement actions. The EPA notes that the Court in United States Sugar Corp v. EPA (No. 11-1108, D.C. Cir., July 29, 2016) (slip op. at 34-36) rejected challenges to the EPA's approach of applying limits during periods of malfunctions, not establishing a separate work practice, and relying on enforcement discretion in individual cases.

    B. Definition of Coal

    The last part of the definition of coal published in the March 21, 2011, final rule (76 FR 15554) reads as follows: “Coal derived gases are excluded from this definition [of coal].” In the January 2015 proposal (80 FR 2871), the EPA proposed to modify this definition to read as follows: “Coal derived gases and liquids are excluded from this definition [of coal].” The EPA characterized its proposed change to the definition as one of several “clarifying changes and corrections.” This proposed change was based on a question received on whether coal derived liquids were meant to be included in the coal definition.

    The EPA received a comment disagreeing with the proposed change to the definition of coal. The commenter (CIBO/ACC) asserted that the revised definition is not logically consistent with the other fuel definitions and irrationally recategorizes specific units as liquid fuel fired where a data analysis would rationally lead them to remaining in the solid fuel category. Specifically, the commenter contended that it is illogical to treat coal derived liquids differently than coal-water mixtures and coal-oil mixtures, both of which are included in the proposed revised definition of “coal.” The commenter explained that coal-water mixtures and coal-oil mixtures are both included in the definition and both are utilized as liquid oil or gas replacements fuels, similar to utilization of coal derived liquids.

    The EPA also proposed the same modification to the definition of coal included in the Boiler MACT (80 FR 3090, January 21, 2015) and subsequently received several comments disagreeing with the proposed change in that action that we also believe are appropriate to consider in this action. Specifically, one commenter who operates a facility with coal derived liquids contended that the composition and emission profile of coal derived liquids more closely resemble the coal from which they are derived than liquid fuels. The commenter also noted that coal derived liquid fuels are treated as coal/solid fossils in other related rules such as 40 CFR part 60, subpart Db.

    Based on these comments, the EPA is not finalizing any changes to the definition of coal. The definition published on March 21, 2011 (76 FR 15554) remains unchanged. As noted by the commenters, treating coal liquids as coal is consistent with the ICI Boiler NSPS (40 CFR part 60, subpart Db), and the EPA agrees with the commenters that coal derived liquids are more similar to coal solid fuels than liquid fuels.

    C. Other Corrections and Clarifications

    In finalizing the rule, the EPA is addressing several other technical corrections and clarifications in the regulatory language based on public comments that were received in response to the January 2015 proposal and other feedback as a result of implementing the rule. In addition to the changes outlined in Table 1 of the January 21, 2015, proposal (80 FR 2879), the EPA is finalizing several other changes, as outlined in Table 2 as follows:

    Table 2—Summary of Technical Corrections and Clarifications Since January 2015 Proposal Section of subpart JJJJJJ Description of correction 63.11195(c) • Revised the paragraph to remove “unless such units do not combust hazardous waste and combust comparable fuels.” The comparable fuels exclusion codified in 40 CFR 261.38 was vacated by the Court. 63.11223(c) • Revised the paragraph to clarify the oxygen level set point for a source not subject to emission limits. The following sentence was added at the end of the paragraph, “If an oxygen trim system is utilized on a unit without emission standards to reduce the tune-up frequency to once every 5 years, set the oxygen level no lower than the oxygen concentration measured during the most recent tune-up.” This clarification was made instead of the proposed clarification to 63.11224(a)(7). 63.11225(e) • Revised the paragraph to include current electronic reporting procedures. 63.11237 • Revised the definition of “Liquid fuel” to remove the phrase “and comparable fuels as defined under 40 CFR 261.38.” The comparable fuels exclusion codified in 40 CFR 261.38 was vacated by the Court.
  • • Revised the definition of “Voluntary consensus standards (VCS)” to correct typographical errors.
  • V. Other Actions We Are Taking

    Section 307(d)(7)(B) of the CAA states that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b)).”

    As to the first procedural criterion for reconsideration, a petitioner must show why the issue could not have been presented during the comment period, either because it was impracticable to raise the issue during that time or because the grounds for the issue arose after the period for public comment (but within 60 days of publication of the final action). The EPA is denying the petition for reconsideration on one issue (i.e., Authority to Require an Energy Assessment) because this criterion has not been met. With respect to that issue, the petition reiterates comments made on the June 4, 2010, proposed rule during the public comment period for that rule. The EPA responded to those comments in the final rule and made appropriate revisions to the proposed rule after consideration of public comments received. It is well established that an agency may refine its proposed approach without providing an additional opportunity for public comment. See Community Nutrition Institute v. Block, 749 F.2d at 58 and International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 1992) (notice and comment is not intended to result in “interminable back-and-forth[,]” nor is agency required to provide additional opportunity to comment on its response to comments) and Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983) (“notice requirement should not force an agency endlessly to repropose a rule because of minor changes”).

    In the EPA's view, an objection is of central relevance to the outcome of the rule only if it provides substantial support for the argument that the promulgated regulation should be revised. See Union Oil v. EPA, 821 F.2d 768, 683 (D.C. Cir. 1987) (the Court declined to remand the rule because petitioners failed to show substantial likelihood that the final rule would have been changed based on information in the petition). See also the EPA's Denial of the Petitions to Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases under section 202 of the CAA, 75 FR at 49556, 49561 (August 13, 2010). See also, 75 FR at 49556, 49560-49563 (August 13, 2010), and 76 FR at 4780, 4786-4788 (January 26, 2011) for additional discussion of the standard for reconsideration under CAA section 307(d)(7)(B).

    In this final decision, several changes that are corrections, editorial changes, and minor clarifications have been made. In one instance, one of those changes made a petitioner's issue (i.e., Averaging Period for CO) moot. Therefore, we are denying reconsideration of that issue.

    A. Request for Reconsideration of the Energy Assessment Requirement

    The petitioner (AF&PA) alleged that a beyond-the-floor requirement of an energy assessment is outside the EPA's authority to set emissions standards under CAA section 112(d)(1) “for each category or subcategory of major sources and area sources.” The petition contends that the EPA has defined the source category for these rules to include only specified types of boilers and process heaters and, therefore, those are the only sources for which the EPA may set standards under these rules.

    The petitioner also alleged that the energy assessment requirement is not an “emissions standard” as that term is defined in the CAA and, therefore, the EPA does not have authority to prescribe such requirements. The petition contends that, furthermore, as a practical matter, even if energy efficiency projects are implemented, there is no guarantee that there will be a corresponding reduction in HAP emissions from affected boilers and process heaters.

    While the petition refers to not only boilers, but also “process heaters,” the EPA has defined the source category for the Area Source Boilers Rule to include only specified types of boilers and, therefore, those are the only sources for which the EPA has set standards under this rule. The petitioner has not demonstrated that it was impracticable to comment on these issues during the public comment period on the proposed Area Source Boilers Rule. In fact, petitioners provided the same comments during that comment period, and subsequently challenged the EPA's establishment of the energy assessment requirement. The Court in United States Sugar Corp. v. EPA (No. 11-1108, D.C. Cir., July 29, 2016)(slip op. at 52) rejected challenges to the energy assessment rule both as a beyond the floor MACT standard and as a GACT standard. Therefore, the EPA is denying the petition for reconsideration of this issue.

    B. Request for Clarification of the Averaging Period for CO

    One petitioner (AF&PA) requested clarification in Table 1 to subpart JJJJJJ of part 63. Specifically, Items 1 and 2 in Table 1 specify that units can comply with the CO limit using a 3-run average or a 10-day rolling average (when using CO CEMS). The Item 6 entry for CO does not include the averaging period text. The petitioner requested that text be added to Table 1, Item 6 that clarifies the averaging period for the CO limit (i.e., “3-run average or 10-day rolling average”).

    Item 6 of Table 1 to subpart JJJJJJ of part 63 has been amended to clarify that either a 3-run average or a 10-day rolling average is an appropriate averaging period for the CO emission limit. The petitioner's comments are, therefore, now moot and we are denying reconsideration on this issue.

    VI. Impacts Associated With This Final Rule

    This action finalizes certain provisions and makes technical and clarifying corrections, but does not promulgate substantive changes to the February 2013 final Area Source Boilers Rule (78 FR 7488). The EPA is finalizing the definitions of startup and shutdown that were promulgated in the February 2013 final rule along with revisions we proposed to make to those definitions, including an alternate definition of startup, and minor adjustments based on public comments. The revisions to the definitions of startup and shutdown clarify the beginning and end of startup and shutdown periods, but do not change the regulatory requirements that apply during those periods or the boilers that are subject to those requirements. We are retaining the subcategory and separate requirements for limited-use boilers, consistent with the February 2013 final rule. The EPA is amending the reconsidered provisions regarding the alternative PM standard for new oil-fired boilers that combust low-sulfur oil, the elimination of further performance testing for PM for certain boilers based on their initial compliance test, and the elimination of further fuel sampling for Hg for certain coal-fired boilers based on their initial compliance demonstration, consistent with the alternative provisions for which comment was solicited in the January 2015 proposal.

    Promulgation of the amendments contained in this action does not change the coverage of the final rule nor does it affect the estimated emission reductions, control costs or the benefits of the rule in substance compared to the March 2011 final rule. The EPA explained in the preamble to the February 2013 final rule that promulgated amendments, including this action's five reconsidered provisions, that those amendments did not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and, in fact, would result in a decrease in burden. We further explained that, as compared to the control costs estimated for the March 2011 final rule, the February 2013 final action would not result in any meaningful change in capital and annual cost. See 78 FR 7503. Similarly, although this action amends three of the reconsidered provisions, it does not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and would result in a decrease in that burden. As discussed in detail in sections III.B, D, and E of this preamble, the three amended provisions regard compliance flexibilities provided in the February 2013 final rule that we have now determined need to be adjusted to be more environmentally protective and ensure compliance with the CAA. Thus, when compared to the February 2013 provisions, the amended provisions could result in minimal additional impacts on boilers that choose to comply with the amended provisions. In that they are compliance flexibilities and a facility's ability to use the provisions will be on a site-specific basis, the EPA cannot anticipate who will be in a position to use the provisions. We, however, can generally describe what those potential impacts would be.

    As discussed in section III.B of this preamble, the EPA is finalizing an alternative PM standard that specifies that new or reconstructed boilers that combust only ultra-low-sulfur liquid fuel (i.e., a distillate oil that has less than or equal to 15 ppm sulfur) meet GACT for PM in place of the February 2013 final rule's alternative PM standard for new or reconstructed oil-fired boilers that combust low-sulfur oil (i.e., oil that contains no more than 0.50 weight percent sulfur). The provision being finalized that specifies that certain boilers meet GACT for PM and, thus, are not subject to the PM emission limit, potentially applies to the subset of oil-fired boilers that are subject to PM emission limits (i.e., new and reconstructed boilers with heat input capacity of 10 MMBtu/hr or greater), including boilers currently meeting the alternative PM standard for boilers that combust low-sulfur oil. The provision being finalized may result in a minimal increase in burden on that subset of sources, when compared to the February 2013 provision that specified that low-sulfur oil-burning boilers meet GACT for PM and are not subject to the PM emission limit. Boilers currently meeting the alternative PM standard for low-sulfur oil burning boilers are provided 3 years from publication of this action before becoming subject to the PM emission limit, providing them time to decide how to comply (i.e., combust only ultra-low-sulfur liquid fuel or conduct a performance stack test demonstrating compliance with the PM emission limit). A number of such boilers, however, would not experience any increase in burden if they were meeting the February 2013 provision by burning ultra-low-sulfur liquid fuel. Specifically, this would be the situation in states such as New York, Connecticut, and New Jersey, which currently limit the sulfur content in oil used for heating purposes to less than 15 ppm. Oil-fired boilers in Maine, Massachusetts, and Vermont used for heating will become subject to 15 ppm sulfur requirements in 2018, which is within the 3-year compliance period provided to boilers currently meeting the alternative PM standard for low-sulfur oil burning boilers. The burden associated with the provision being finalized is still less than the burden that was imposed by the March 2011 final rule which required all oil-fired boilers subject to a PM emission limit to conduct performance stack testing for PM every 3 years.

    As discussed in section III.D of this preamble, the EPA is finalizing a provision that specifies that when demonstrating initial compliance with the PM emission limit, if performance test results show that PM emissions from an affected boiler are equal to or less than half of the applicable PM emission limit, additional PM emissions testing does not need to be conducted for 5 years in place of the February 2013 final rule's provision that eliminated further PM performance testing for such boilers. The provision being finalized that allows certain boilers to conduct PM emissions testing every 5 years potentially applies to the subset of boilers that are subject to PM emission limits (i.e., new and reconstructed boilers with heat input capacity of 10 MMBtu/hr or greater), including boilers that previously demonstrated that their PM emissions were equal to or less than half of the PM emission limit. The provision being finalized will result in a minimal increase in burden on that subset of sources, when compared to the February 2013 provision that eliminated further PM emissions testing for such sources, in that they will be required to conduct a performance stack test for PM every 5 years. The burden associated with the provision being finalized is still less than the burden that was imposed by the March 2011 final rule which required all boilers subject to a PM emission limit to conduct performance stack testing for PM every 3 years.

    As discussed in section III.E of this preamble, the EPA is finalizing a provision that specifies that when demonstrating initial compliance with the Hg emission limit based on fuel analysis, if the Hg constituents in the fuel or fuel mixture are measured to be equal to or less than half of the Hg emission limit, additional fuel analysis sampling for Hg would not need to be conducted for 12 months in place of the provision that eliminated further fuel sampling for such boilers. The provision being finalized that allows certain boilers to conduct fuel analysis sampling for Hg every 12 months potentially applies to the subset of boilers that are subject to Hg emission limits (i.e., coal-fired boilers with heat input capacity of 10 MMBtu/hr or greater), including boilers that previously demonstrated that the Hg constituents in their fuel or fuel mixture were equal to or less than half of the Hg emission limit. The provision being finalized will result in a minimal increase in burden on that subset of sources, when compared to the February 2013 provision that eliminated further fuel analysis sampling for Hg for such sources, in that they will be required to conduct fuel analysis sampling for Hg every 12 months. The burden associated with the provision being finalized is still less than the burden that was imposed by the March 2011 final rule which required all boilers that demonstrated compliance with the Hg emission limit based on fuel analysis to conduct fuel analysis sampling for Hg on a monthly basis.

    VII. Statutory and Executive Order Reviews

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

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

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

    B. Paperwork Reduction Act (PRA)

    This action which finalizes certain provisions and makes technical and clarifying corrections will result in no significant changes to the information collection requirements of the promulgated rule and will have no increased impact on the information collection estimate of projected cost and hour burden made and approved by OMB. The EPA explained in the preamble to the February 2013 final rule that promulgated amendments, including this action's five reconsidered provisions, that those amendments did not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and, in fact, would result in a decrease in burden. Accordingly, the ICR was not revised as a result of the February 2013 final rule. Similarly, although this action amends three of the reconsidered provisions, it does not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and would result in a decrease in that burden. The three amended provisions regard compliance flexibilities that allow reduced performance stack testing and/or fuel sampling for certain boilers. Therefore, the ICR has not been revised as a result of this action. The OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0668.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. The small entities subject to the requirements of this action are owners and operators of coal-, biomass-, and oil-fired boilers located at area sources of HAP emissions. The EPA explained in the preamble to the February 2013 final rule that promulgated amendments to the March 2011 final rule that those amendments were closely related to the final Area Source Boilers Rule, which the EPA signed on February 21, 2011, and that took effect on May 20, 2011. We further explained that the EPA prepared a final regulatory flexibility analysis in connection with the final Area Source Boilers Rule and, therefore, pursuant to section 605(c), the EPA was not required to complete a final regulatory flexibility analysis for the February 2013 final rule. (78 FR 7503-7504, February 1, 2013.) This action finalizes certain provisions and makes technical and clarifying corrections, but does not promulgate substantive changes to the February 2013 final Area Source Boilers Rule. Further, as explained in section VI of this preamble, the February 2013 final rule that promulgated amendments, including this action's reconsidered provisions, did not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and, in fact, would result in a decrease in burden. Similarly, although this action amends three of the reconsidered provisions, it does not impose any additional regulatory requirements beyond those imposed by the March 2011 final rule and would result in a decrease in that burden.

    D. Unfunded Mandates Reform Act (UMRA)

    This final action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action finalizes certain provisions and makes technical and clarifying corrections, but does not promulgate substantive changes to the February 2013 final Area Source Boilers Rule.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. This action finalizes certain provisions and makes technical and clarifying corrections, but does not promulgate substantive changes to the February 2013 final Area Source Boilers Rule. Thus, Executive Order 13175 does not apply to this action.

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

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

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

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve any new technical standards from those contained in the March 21, 2011, final rule. Therefore, the EPA did not consider the use of any voluntary consensus standards. See 76 FR 15588 for the NTTAA discussion in the March 21, 2011, final rule.

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

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The environmental justice finding in the February 2013 final Area Source Boilers Rule (78 FR 7504, February 1, 2013) remains relevant in this action which finalizes certain provisions and makes technical and clarifying corrections, but does not promulgate substantive changes to the February 2013 final Area Source Boilers Rule.

    K. Congressional Review Act (CRA)

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

    List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances.

    Dated: August 23, 2016. Gina McCarthy, Administrator.

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

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

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

    Subpart JJJJJJ—[AMENDED] 2. Section 63.11195 is amended by revising paragraphs (c) and (k) to read as follows:
    § 63.11195 Are any boilers not subject to this subpart?

    (c) A boiler required to have a permit under section 3005 of the Solid Waste Disposal Act or covered by subpart EEE of this part (e.g., hazardous waste boilers).

    (k) An electric utility steam generating unit (EGU) as defined in this subpart.

    3. Section 63.11210 is amended by: a. Revising paragraphs (b) and (e); b. Redesignating paragraphs (f) through (j) as paragraphs (g) through (k); c. Adding a new paragraph (f); and d. Revising the newly designated paragraphs (j) introductory text, (k) introductory text, and (k)(1) and (2).

    The revisions and addition read as follows:

    § 63.11210 What are my initial compliance requirements and by what date must I conduct them?

    (b) For existing affected boilers that have applicable emission limits, you must demonstrate initial compliance with the applicable emission limits no later than 180 days after the compliance date that is specified in § 63.11196 and according to the applicable provisions in § 63.7(a)(2), except as provided in paragraph (k) of this section.

    (e) For new or reconstructed oil-fired boilers that commenced construction or reconstruction on or before September 14, 2016, that combust only oil that contains no more than 0.50 weight percent sulfur or a mixture of 0.50 weight percent sulfur oil with other fuels not subject to a particulate matter (PM) emission limit under this subpart and that do not use a post-combustion technology (except a wet scrubber) to reduce PM or sulfur dioxide emissions, you are not subject to the PM emission limit in Table 1 of this subpart until September 14, 2019, providing you monitor and record on a monthly basis the type of fuel combusted. If you intend to burn a new type of fuel or fuel mixture that does not meet the requirements of this paragraph, you must conduct a performance test within 60 days of burning the new fuel. On and after September 14, 2019, you are subject to the PM emission limit in Table 1 of this subpart and you must demonstrate compliance with the PM emission limit in Table 1 no later than March 12, 2020.

    (f) For new or reconstructed boilers that combust only ultra-low-sulfur liquid fuel as defined in § 63.11237, you are not subject to the PM emission limit in Table 1 of this subpart providing you monitor and record on a monthly basis the type of fuel combusted. If you intend to burn a fuel other than ultra-low-sulfur liquid fuel or gaseous fuels as defined in § 63.11237, you must conduct a performance test within 60 days of burning the new fuel.

    (j) For boilers located at existing major sources of HAP that limit their potential to emit (e.g., make a physical change or take a permit limit) such that the existing major source becomes an area source, you must comply with the applicable provisions as specified in paragraphs (j)(1) through (3) of this section.

    (k) For existing affected boilers that have not operated on solid fossil fuel, biomass, or liquid fuel between the effective date of the rule and the compliance date that is specified for your source in § 63.11196, you must comply with the applicable provisions as specified in paragraphs (k)(1) through (3) of this section.

    (1) You must complete the initial compliance demonstration, if subject to the emission limits in Table 1 to this subpart, as specified in paragraphs (a) and (b) of this section, no later than 180 days after the re-start of the affected boiler on solid fossil fuel, biomass, or liquid fuel and according to the applicable provisions in § 63.7(a)(2).

    (2) You must complete the initial performance tune-up, if subject to the tune-up requirements in § 63.11223, by following the procedures described in § 63.11223(b) no later than 30 days after the re-start of the affected boiler on solid fossil fuel, biomass, or liquid fuel.

    4. Section 63.11214 is amended by revising paragraphs (a) through (c) to read as follows:
    § 63.11214 How do I demonstrate initial compliance with the work practice standard, emission reduction measures, and management practice?

    (a) If you own or operate an existing or new coal-fired boiler with a heat input capacity of less than 10 million Btu per hour, you must conduct a performance tune-up according to § 63.11210(c) or (g), as applicable, and § 63.11223(b). If you own or operate an existing coal-fired boiler with a heat input capacity of less than 10 million Btu per hour, you must submit a signed statement in the Notification of Compliance Status report that indicates that you conducted an initial tune-up of the boiler.

    (b) If you own or operate an existing or new biomass-fired boiler or an existing or new oil-fired boiler, you must conduct a performance tune-up according to § 63.11210(c) or (g), as applicable, and § 63.11223(b). If you own or operate an existing biomass-fired boiler or existing oil-fired boiler, you must submit a signed statement in the Notification of Compliance Status report that indicates that you conducted an initial tune-up of the boiler.

    (c) If you own or operate an existing affected boiler with a heat input capacity of 10 million Btu per hour or greater, you must submit a signed certification in the Notification of Compliance Status report that an energy assessment of the boiler and its energy use systems was completed according to Table 2 to this subpart and that the assessment is an accurate depiction of your facility at the time of the assessment or that the maximum number of on-site technical hours specified in the definition of energy assessment applicable to the facility has been expended.

    5. Section 63.11220 is revised read as follows:
    § 63.11220 When must I conduct subsequent performance tests or fuel analyses?

    (a) If your boiler has a heat input capacity of 10 million Btu per hour or greater, you must conduct all applicable performance (stack) tests according to § 63.11212 on a triennial basis, except as specified in paragraphs (b) through (e) of this section. Triennial performance tests must be completed no more than 37 months after the previous performance test.

    (b) For new or reconstructed boilers that commenced construction or reconstruction on or before September 14, 2016, when demonstrating initial compliance with the PM emission limit, if your boiler's performance test results show that your PM emissions are equal to or less than half of the PM emission limit, you do not need to conduct further performance tests for PM until September 14, 2021, but must continue to comply with all applicable operating limits and monitoring requirements and must comply with the provisions as specified in paragraphs (b)(1) through (4) of this section.

    (1) A performance test for PM must be conducted by September 14, 2021.

    (2) If your performance test results show that your PM emissions are equal to or less than half of the PM emission limit, you may choose to conduct performance tests for PM every fifth year. Each such performance test must be conducted no more than 61 months after the previous performance test.

    (3) If you intend to burn a new type of fuel other than ultra-low-sulfur liquid fuel or gaseous fuels as defined in § 63.11237, you must conduct a performance test within 60 days of burning the new fuel type.

    (4) If your performance test results show that your PM emissions are greater than half of the PM emission limit, you must conduct subsequent performance tests on a triennial basis as specified in paragraph (a) of this section.

    (c) For new or reconstructed boilers that commenced construction or reconstruction after September 14, 2016, when demonstrating initial compliance with the PM emission limit, if your boiler's performance test results show that your PM emissions are equal to or less than half of the PM emission limit, you may choose to conduct performance tests for PM every fifth year, but must continue to comply with all applicable operating limits and monitoring requirements and must comply with the provisions as specified in paragraphs (c)(1) through (3) of this section.

    (1) Each such performance test must be conducted no more than 61 months after the previous performance test.

    (2) If you intend to burn a new type of fuel other than ultra-low-sulfur liquid fuel or gaseous fuels as defined in § 63.11237, you must conduct a performance test within 60 days of burning the new fuel type.

    (3) If your performance test results show that your PM emissions are greater than half of the PM emission limit, you must conduct subsequent performance tests on a triennial basis as specified in paragraph (a) of this section.

    (d) If you demonstrate compliance with the mercury emission limit based on fuel analysis, you must conduct a fuel analysis according to § 63.11213 for each type of fuel burned as specified in paragraphs (d)(1) through (3) of this section. If you plan to burn a new type of fuel or fuel mixture, you must conduct a fuel analysis before burning the new type of fuel or mixture in your boiler. You must recalculate the mercury emission rate using Equation 1 of § 63.11211. The recalculated mercury emission rate must be less than the applicable emission limit.

    (1) For existing boilers and new or reconstructed boilers that commenced construction or reconstruction on or before September 14, 2016, when demonstrating initial compliance with the mercury emission limit, if the mercury constituents in the fuel or fuel mixture are measured to be equal to or less than half of the mercury emission limit, you do not need to conduct further fuel analysis sampling until September 14, 2017, but must continue to comply with all applicable operating limits and monitoring requirements and must comply with the provisions as specified in paragraphs (d)(1)(i) and (ii) of this section.

    (i) Fuel analysis sampling for mercury must be conducted by September 14, 2017.

    (ii) If your fuel analysis results show that the mercury constituents in the fuel or fuel mixture are equal to or less than half of the mercury emission limit, you may choose to conduct fuel analysis sampling for mercury every 12 months.

    (2) For new or reconstructed boilers that commenced construction or reconstruction after September 14, 2016, when demonstrating initial compliance with the mercury emission limit, if the mercury constituents in the fuel or fuel mixture are measured to be equal to or less than half of the mercury emission limit, you may choose to conduct fuel analysis sampling for mercury every 12 months, but must continue to comply with all applicable operating limits and monitoring requirements.

    (3) When demonstrating compliance with the mercury emission limit, if the mercury constituents in the fuel or fuel mixture are greater than half of the mercury emission limit, you must conduct quarterly sampling.

    (e) For existing affected boilers that have not operated on solid fossil fuel, biomass, or liquid fuel since the previous compliance demonstration and more than 3 years have passed since the previous compliance demonstration, you must complete your subsequent compliance demonstration no later than 180 days after the re-start of the affected boiler on solid fossil fuel, biomass, or liquid fuel.

    6. Section 63.11221 is amended by revising paragraph (c) to read as follows:
    § 63.11221 Is there a minimum amount of monitoring data I must obtain?

    (c) You may not use data collected during periods of startup and shutdown, monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfunctions or out-of-control periods, or required monitoring system quality assurance or quality control activities in calculations used to report emissions or operating levels. Any such periods must be reported according to the requirements in § 63.11225. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system.

    7. Section 63.11222 is amended by revising paragraph (a)(2) to read as follows:
    § 63.11222 How do I demonstrate continuous compliance with the emission limits?

    (a) * * *

    (2) If you have an applicable mercury or PM emission limit, you must keep records of the type and amount of all fuels burned in each boiler during the reporting period. If you have an applicable mercury emission limit, you must demonstrate that all fuel types and mixtures of fuels burned would result in lower emissions of mercury than the applicable emission limit (if you demonstrate compliance through fuel analysis), or result in lower fuel input of mercury than the maximum values calculated during the last performance stack test (if you demonstrate compliance through performance stack testing).

    8. Section 63.11223 is amended by revising paragraph (c) to read as follows:
    § 63.11223 How do I demonstrate continuous compliance with the work practice and management practice standards?

    (c) Boilers with an oxygen trim system that maintains an optimum air-to-fuel ratio that would otherwise be subject to a biennial tune-up must conduct a tune-up of the boiler every 5 years as specified in paragraphs (b)(1) through (7) of this section. Each 5-year tune-up must be conducted no more than 61 months after the previous tune-up. For a new or reconstructed boiler with an oxygen trim system, the first 5-year tune-up must be no later than 61 months after the initial startup. You may delay the burner inspection specified in paragraph (b)(1) of this section and inspection of the system controlling the air-to-fuel ratio specified in paragraph (b)(3) of this section until the next scheduled unit shutdown, but you must inspect each burner and system controlling the air-to-fuel ratio at least once every 72 months. If an oxygen trim system is utilized on a unit without emission standards to reduce the tune-up frequency to once every 5 years, set the oxygen level no lower than the oxygen concentration measured during the most recent tune-up.

    9. Section 63.11225 is amended by revising paragraphs (a)(4) introductory text, (b) introductory text, (c)(2)(iv), (e), and (g) introductory text to read as follows:
    § 63.11225 What are my notification, reporting, and recordkeeping requirements?

    (a) * * *

    (4) You must submit the Notification of Compliance Status no later than 120 days after the applicable compliance date specified in § 63.11196 unless you own or operate a new boiler subject only to a requirement to conduct a biennial or 5-year tune-up or you must conduct a performance stack test. If you own or operate a new boiler subject to a requirement to conduct a tune-up, you are not required to prepare and submit a Notification of Compliance Status for the tune-up. If you must conduct a performance stack test, you must submit the Notification of Compliance Status within 60 days of completing the performance stack test. You must submit the Notification of Compliance Status in accordance with paragraphs (a)(4)(i) and (vi) of this section. The Notification of Compliance Status must include the information and certification(s) of compliance in paragraphs (a)(4)(i) through (v) of this section, as applicable, and signed by a responsible official.

    (b) You must prepare, by March 1 of each year, and submit to the delegated authority upon request, an annual compliance certification report for the previous calendar year containing the information specified in paragraphs (b)(1) through (4) of this section. You must submit the report by March 15 if you had any instance described by paragraph (b)(3) of this section. For boilers that are subject only to the energy assessment requirement and/or a requirement to conduct a biennial or 5-year tune-up according to § 63.11223(a) and not subject to emission limits or operating limits, you may prepare only a biennial or 5-year compliance report as specified in paragraphs (b)(1) and (2) of this section.

    (c) * * *

    (2) * * *

    (iv) For each boiler subject to an emission limit in Table 1 to this subpart, you must keep records of monthly fuel use by each boiler, including the type(s) of fuel and amount(s) used. For each new oil-fired boiler that meets the requirements of § 63.11210(e) or (f), you must keep records, on a monthly basis, of the type of fuel combusted.

    (e)(1) Within 60 days after the date of completing each performance test (as defined in § 63.2) required by this subpart, you must submit the results of the performance tests, including any associated fuel analyses, following the procedure specified in either paragraph (e)(1)(i) or (ii) of this section.

    (i) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (https://www3.epa.gov/ttn/chief/ert/ert_info.html) at the time of the test, you must submit the results of the performance test to the EPA via the Compliance and Emissions Data Reporting Interface (CEDRI). (CEDRI can be accessed through the EPA's Central Data Exchange (CDX) (https://cdx.epa.gov/).) Performance test data must be submitted in a file format generated through the use of the EPA's ERT or an alternate electronic file format consistent with the extensible markup language (XML) schema listed on the EPA's ERT Web site. If you claim that some of the performance test information being submitted is confidential business information (CBI), you must submit a complete file generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT Web site, including information claimed to be CBI, on a compact disc, flash drive, or other commonly used electronic storage media to the EPA. The electronic media must be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described earlier in this paragraph.

    (ii) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.

    (2) Within 60 days after the date of completing each CEMS performance evaluation (as defined in § 63.2), you must submit the results of the performance evaluation following the procedure specified in either paragraph (e)(2)(i) or (ii) of this section.

    (i) For performance evaluations of continuous monitoring systems measuring relative accuracy test audit (RATA) pollutants that are supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the evaluation, you must submit the results of the performance evaluation to the EPA via the CEDRI. (CEDRI can be accessed through the EPA's CDX.) Performance evaluation data must be submitted in a file format generated through the use of the EPA's ERT or an alternate file format consistent with the XML schema listed on the EPA's ERT Web site. If you claim that some of the performance evaluation information being submitted is CBI, you must submit a complete file generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT Web site, including information claimed to be CBI, on a compact disc, flash drive, or other commonly used electronic storage media to the EPA. The electronic storage media must be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described earlier in this paragraph.

    (ii) For any performance evaluations of continuous monitoring systems measuring RATA pollutants that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the evaluation, you must submit the results of the performance evaluation to the Administrator at the appropriate address listed in § 63.13.

    (g) If you have switched fuels or made a physical change to the boiler and the fuel switch or change resulted in the applicability of a different subcategory within this subpart, in the boiler becoming subject to this subpart, or in the boiler switching out of this subpart due to a fuel change that results in the boiler meeting the definition of gas-fired boiler, as defined in § 63.11237, or you have taken a permit limit that resulted in you becoming subject to this subpart or no longer being subject to this subpart, you must provide notice of the date upon which you switched fuels, made the physical change, or took a permit limit within 30 days of the change. The notification must identify:

    § 63.11226 [Removed and Reserved]
    10. Section 63.11226 is removed and reserved.
    11. Section 63.11237 is amended by: a. Removing the definition of “Affirmative defense”; b. Adding in alphabetical order a definition for “Annual capacity factor”; c. Revising the definition of “Dry scrubber”; d. Adding in alphabetical order a definition for “Fossil fuel”; e. Revising the definitions of “Gas-fired boiler”, “Limited-use boiler”, “Liquid fuel”, “Load fraction”, “Oxygen trim system”, “Shutdown”, and “Startup”; f. Adding in alphabetical order definitions for “Ultra-low-sulfur liquid fuel” and “Useful thermal energy”; and g. Revising the definition of “Voluntary Consensus Standards (VCS)”.

    The revisions and additions read as follows:

    § 63.11237 What definitions apply to this subpart?

    Annual capacity factor means the ratio between the actual heat input to a boiler from the fuels burned during a calendar year and the potential heat input to the boiler had it been operated for 8,760 hours during a year at the maximum steady state design heat input capacity.

    Dry scrubber means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gas in the exhaust stream forming a dry powder material. Sorbent injection systems used as control devices in fluidized bed boilers are included in this definition. A dry scrubber is a dry control system.

    Fossil fuel means natural gas, oil, coal, and any form of solid, liquid, or gaseous fuel derived from such material.

    Gas-fired boiler includes any boiler that burns gaseous fuels not combined with any solid fuels and burns liquid fuel only during periods of gas curtailment, gas supply interruption, startups, or for periodic testing, maintenance, or operator training on liquid fuel. Periodic testing, maintenance, or operator training on liquid fuel shall not exceed a combined total of 48 hours during any calendar year.

    Limited-use boiler means any boiler that burns any amount of solid or liquid fuels and has a federally enforceable annual capacity factor of no more than 10 percent.

    Liquid fuel includes, but is not limited to, distillate oil, residual oil, any form of liquid fuel derived from petroleum, used oil meeting the specification in 40 CFR 279.11, liquid biofuels, biodiesel, and vegetable oil.

    Load fraction means the actual heat input of a boiler divided by heat input during the performance test that established the minimum sorbent injection rate or minimum activated carbon injection rate, expressed as a fraction (e.g., for 50 percent load the load fraction is 0.5). For boilers that co-fire natural gas with a solid or liquid fuel, the load fraction is determined by the actual heat input of the solid or liquid fuel divided by heat input of the solid or liquid fuel fired during the performance test (e.g., if the performance test was conducted at 100 percent solid fuel firing, for 100 percent load firing 50 percent solid fuel and 50 percent natural gas, the load fraction is 0.5).

    Oxygen trim system means a system of monitors that is used to maintain excess air at the desired level in a combustion device over its operating load range. A typical system consists of a flue gas oxygen and/or carbon monoxide monitor that automatically provides a feedback signal to the combustion air controller or draft controller.

    Shutdown means the period in which cessation of operation of a boiler is initiated for any purpose. Shutdown begins when the boiler no longer supplies useful thermal energy (such as steam or hot water) for heating, cooling, or process purposes or generates electricity, or when no fuel is being fed to the boiler, whichever is earlier. Shutdown ends when the boiler no longer supplies useful thermal energy (such as steam or hot water) for heating, cooling, or process purposes or generates electricity, and no fuel is being combusted in the boiler.

    Startup means:

    (1) Either the first-ever firing of fuel in a boiler for the purpose of supplying useful thermal energy (such as steam or hot water) for heating and/or producing electricity, or for any other purpose, or the firing of fuel in a boiler after a shutdown event for any purpose. Startup ends when any of the useful thermal energy (such as steam or hot water) from the boiler is supplied for heating and/or producing electricity, or for any other purpose, or

    (2) The period in which operation of a boiler is initiated for any purpose. Startup begins with either the first-ever firing of fuel in a boiler for the purpose of supplying useful thermal energy (such as steam or hot water) for heating, cooling or process purposes or producing electricity, or the firing of fuel in a boiler for any purpose after a shutdown event. Startup ends 4 hours after when the boiler supplies useful thermal energy (such as steam or hot water) for heating, cooling, or process purposes or generates electricity, whichever is earlier.

    Ultra-low-sulfur liquid fuel means a distillate oil that has less than or equal to 15 parts per million (ppm) sulfur.

    Useful thermal energy means energy (i.e., steam or hot water) that meets the minimum operating temperature, flow, and/or pressure required by any energy use system that uses energy provided by the affected boiler.

    Voluntary Consensus Standards (VCS) mean technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. EPA/Office of Air Quality Planning and Standards, by precedent, has only used VCS that are written in English. Examples of VCS bodies are: American Society of Testing and Materials (ASTM, 100 Barr Harbor Drive, P.O. Box CB700, West Conshohocken, Pennsylvania 19428-B2959, (800) 262-1373, http://www.astm.org), American Society of Mechanical Engineers (ASME, Three Park Avenue, New York, NY 10016-5990, (800) 843-2763, http://www.asme.org), International Standards Organization (ISO 1, ch. de la Voie-Creuse, Case postale 56, CH-1211 Geneva 20, Switzerland, +41 22 749 01 11, http://www.iso.org/iso/home.htm), Standards Australia (AS Level 10, The Exchange Centre, 20 Bridge Street, Sydney, GPO Box 476, Sydney NSW 2001, +61 2 9237 6171 http://www.standards.org.au), British Standards Institution (BSI, 389 Chiswick High Road, London, W4 4AL, United Kingdom, +44 (0)20 8996 9001, http://www.bsigroup.com), Canadian Standards Association (CSA, 5060 Spectrum Way, Suite 100, Mississauga, Ontario L4W 5N6, Canada, 800-463-6727, http://www.csa.ca), European Committee for Standardization (CEN CENELEC Management Centre Avenue Marnix 17 B-1000 Brussels, Belgium +32 2 550 08 11, http://www.cen.eu/cen), and German Engineering Standards (VDI Guidelines Department, P.O. Box 10 11 39 40002, Duesseldorf, Germany, +49 211 6214-230, http://www.vdi.eu). The types of standards that are not considered VCS are standards developed by: the United States, e.g., California Air Resources Board (CARB) and Texas Commission on Environmental Quality (TCEQ); industry groups, such as American Petroleum Institute (API), Gas Processors Association (GPA), and Gas Research Institute (GRI); and other branches of the U.S. Government, e.g., Department of Defense (DOD) and Department of Transportation (DOT). This does not preclude EPA from using standards developed by groups that are not VCS bodies within their rule. When this occurs, EPA has done searches and reviews for VCS equivalent to these non-EPA methods.

    12. Table 1 to Subpart JJJJJJ of Part 63 is amended by revising the entry 6 to read as follows: Table 1 to Subpart JJJJJJ of Part 63—Emission Limits If your boiler is in this subcategory . . . For the following pollutants . . . You must achieve less than or equal to the following emission limits, except during periods of startup and shutdown . . . *         *         *         *         *         *         * 6. Existing coal-fired boilers with heat input capacity of 10 MMBtu/hr or greater that do not meet the definition of limited-use boiler a. Mercury
  • b. CO
  • 2.2E-05 lb per MMBtu of heat input.
  • 420 ppm by volume on a dry basis corrected to 3 percent oxygen (3-run average or 10-day rolling average).
  • 13. Table 2 to Subpart JJJJJJ of Part 63 is amended by revising the entry 16 to read as follows: Table 2 to Subpart JJJJJJ of Part 63—Work Practice Standards, Emission Reduction Measures, and Management Practices If your boiler is in this subcategory . . . You must meet the following . . . *         *         *         *         *         *         * 16. Existing coal-fired, biomass-fired, or oil-fired boilers (units with heat input capacity of 10 MMBtu/hr and greater), not including limited-use boilers Must have a one-time energy assessment performed by a qualified energy assessor. An energy assessment completed on or after January 1, 2008, that meets or is amended to meet the energy assessment requirements in this table satisfies the energy assessment requirement. Energy assessor approval and qualification requirements are waived in instances where past or amended energy assessments are used to meet the energy assessment requirements. A facility that operated under an energy management program developed according to the ENERGY STAR guidelines for energy management or compatible with ISO 50001 for at least 1 year between January 1, 2008, and the compliance date specified in § 63.11196 that includes the affected units also satisfies the energy assessment requirement. The energy assessment must include the following with extent of the evaluation for items (1) to (4) appropriate for the on-site technical hours listed in § 63.11237: (1) A visual inspection of the boiler system, (2) An evaluation of operating characteristics of the affected boiler systems, specifications of energy use systems, operating and maintenance procedures, and unusual operating constraints, (3) An inventory of major energy use systems consuming energy from affected boiler(s) and which are under control of the boiler owner or operator, (4) A review of available architectural and engineering plans, facility operation and maintenance procedures and logs, and fuel usage, (5) A list of major energy conservation measures that are within the facility's control, (6) A list of the energy savings potential of the energy conservation measures identified, and (7) A comprehensive report detailing the ways to improve efficiency, the cost of specific improvements, benefits, and the time frame for recouping those investments. 14. Table 6 to Subpart JJJJJJ of Part 63 is amended by revising the entry 2 to read as follows: Table 6 to Subpart JJJJJJ of Part 63—Establishing Operating Limits If you have an applicable emission limit for . . . And your operating limits are based on . . . You must . . . Using . . . According to the following requirements *         *         *         *         *         *         * 2. Mercury Dry sorbent or activated carbon injection rate operating parameters Establish a site-specific minimum sorbent or activated carbon injection rate operating limit according to § 63.11211(b) Data from the sorbent or activated carbon injection rate monitors and the mercury performance stack tests (a) You must collect sorbent or activated carbon injection rate data every 15 minutes during the entire period of the performance stack tests; (b) Determine the average sorbent or activated carbon injection rate for each individual test run in the three-run performance stack test by computing the average of all the 15-minute readings taken during each test run. (c) When your unit operates at lower loads, multiply your sorbent or activated carbon injection rate by the load fraction, as defined in § 63.11237, to determine the required injection rate. *         *         *         *         *         *         *
    [FR Doc. 2016-21334 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0283; FRL-9949-81] Acrylic Polymers; Tolerance Exemption AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation amends an exemption from the requirement of a tolerance for residues of acrylic polymers when used as an inert ingredient in a pesticide chemical formulation under 40 CFR 180.960 to include the monomers lauryl acrylate and acrylamidopropyl methyl sulfonic acid. OMC Ag Consulting on behalf of Vive Crop Protection Inc submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of acrylic polymers on food or feed commodities.

    DATES:

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

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0283, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

    C. Can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0283 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 14, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0283, by one of the following methods.

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

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

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Background and Statutory Findings

    In the Federal Register of July 20, 2016 (81 FR 47151) (FRL-9948-45), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10935) filed by OMC Ag Consulting (828 Tanglewood Lane, East Lansing, MI 48823) on behalf of Vive Crop Protection, Inc. (700 Bay Street, Suite 1100, Toronto, Ontario, Canada M5G-1Z6). The petition requested that the exemption from the requirement of a tolerance for residues of acrylic polymers composed of one or more of the following monomers: Acrylic acid, butyl acrylate, butyl methacrylate, carboxyethyl acrylate, ethyl acrylate, ethyl methacrylate, hydroxybutyl acrylate, hydroxybutyl methacrylate, hydroxyethyl acrylate, hydroxyethyl methacrylate, hydroxypropyl acrylate, hydroxypropyl methacrylate, isobutyl methacrylate, lauryl methacrylate, methacrylic acid, methyl acrylate, methyl methacrylate and stearyl methacrylate; with none and/or one or more of the following monomers: Acrylamide, diethyl maleate, dioctyl maleate, maleic acid, maleic anhydride, monoethyl maleate, monooctyl maleate, N-methyl acrylamide, N,N-dimethyl acrylamide, N-octylacrylamide; and their corresponding ammonium, isopropylamine, monoethanolamine, potassium, sodium triethylamine, and/or triethanolamine salts; the resulting polymer having a minimum number average molecular weight (in amu), 1,200 when used as a pesticide inert ingredient in pesticide formulations under 40 CFR 180.960 be amended to include the monomers lauryl acrylate and acrylamidopropyl methyl sulfonic acid. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

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

    III. Risk Assessment and Statutory Findings

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

    Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Acrylic polymers composed of monomers listed in Unit II conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

    1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

    2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

    3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

    4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

    5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

    6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

    Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

    7. The polymer's minimum number average MW of 1,200 is greater than or equal to 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000.

    Thus, acrylic polymers composed of monomers listed in Unit II meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to acrylic polymers.

    IV. Aggregate Exposures

    For the purposes of assessing potential exposure under this exemption, EPA considered that acrylate polymers could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of acrylic polymers is 1,200 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since acrylic polymers conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

    V. Cumulative Effects From Substances With a Common Mechanism of Toxicity

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

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

    VI. Additional Safety Factor for the Protection of Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of acrylic polymers, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

    VII. Determination of Safety

    Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of acrylic polymers.

    VIII. Other Considerations

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for acrylic polymers.

    IX. Conclusion

    Accordingly, EPA finds that exempting residues of acrylic polymers from the requirement of a tolerance will be safe.

    X. Statutory and Executive Order Reviews

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

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

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

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

    XI. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: August 16, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.960, the table is amended by revising the following entry to read as follows:
    §  180.960 Polymers; exemptions from the requirement of a tolerance. Polymer CAS No. *         *         *         *         *         *         * Acrylic polymers composed of one or more of the following monomers: Acrylic acid, butyl acrylate, butyl methacrylate, carboxyethyl acrylate, ethyl acrylate, ethyl methacrylate, hydroxybutyl acrylate, hydroxybutyl methacrylate, hydroxyethyl acrylate, hydroxyethyl methacrylate, hydroxypropyl acrylate, hydroxypropyl methacrylate, isobutyl methacrylate, lauryl methacrylate, methacrylic acid, methyl acrylate, lauryl acrylate, methyl methacrylate and stearyl methacrylate; with none and/or one or more of the following monomers: Acrylamide, diethyl maleate, dioctyl maleate, maleic acid, maleic anhydride, monoethyl maleate, monooctyl maleate, N-methyl acrylamide, N,N-dimethyl acrylamide, N-octylacrylamide, and acrylamidopropyl methyl sulfonic acid; and their corresponding ammonium, isopropylamine, monoethanolamine, potassium, sodium triethylamine, and/or triethanolamine salts; the resulting polymer having a minimum number average molecular weight (in amu), 1,200 None. *         *         *         *         *         *         *
    [FR Doc. 2016-20853 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-74 [Notice-MA-2016-05; Docket No. 2016-0002; Sequence 19] Federal Management Regulation; Nondiscrimination Clarification in the Federal Workplace; Correction AGENCY:

    Office of Government-wide Policy (OGP), General Services Administration (GSA).

    ACTION:

    Issuance of bulletin; Correction.

    SUMMARY:

    GSA published a document in the Federal Register on August 18, 2016 at 81 FR 55148, regarding Nondiscrimination Clarification in the Federal Workplace. GSA is making an editorial change to correct the incorrect CFR part listed in the header.

    DATES:

    Effective: September 14, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Dennis Oden, Director, Civil Rights Programs Division (AKB), Office of Civil Rights, 202-417-5711. Please cite Notice-MA-2016-05; Correction.

    SUPPLEMENTARY INFORMATION: Correction

    In FR Doc. 2016-19450 published in the Federal Register at 81 FR 55148, August 18, 2016, make the following correction:

    On page 55148, in the first column, third line of the header, remove “41 CFR part 74” and add “41 CFR part 102-74” in its place.

    Dated: September 9, 2016. Hada Flowers, Federal Register Liaison, Division Director, Regulatory Secretariat Division, Office of Government-wide Acquisition Policy, Office of Acquisition Policy.
    [FR Doc. 2016-22063 Filed 9-13-16; 8:45 am] BILLING CODE 6820-14-P
    GENERAL SERVICES ADMINISTRATION 41 CFR Parts 301-11 and 301-70 [FTR Amendment 2016-02, FTR Case 2015-304; Docket No. 2015-0017, Sequence No. 1] RIN 3090-AJ56 Federal Travel Regulation; Clarifying Agency Responsibilities Concerning Reimbursement for Automatic Teller Machine (ATM) Fees and Laundry, Cleaning and Pressing of Clothing Expenses AGENCY:

    Office of Government-wide Policy (OGP), General Services Administration (GSA).

    ACTION:

    Final rule.

    SUMMARY:

    GSA is amending the Federal Travel Regulation (FTR) by clarifying the regulations regarding reimbursement for Automatic Teller Machine (ATM) fees and laundry, cleaning, and pressing of clothing expenses.

    DATES:

    Effective: September 14, 2016.

    Applicability: Federal agencies have until November 14, 2016 to apply this rule to their internal policies.

    FOR FURTHER INFORMATION CONTACT:

    For clarification of content, contact Mr. Cy Greenidge, Program Analyst, Office of Government-wide Policy, at 202-219-2349. For more information pertaining to status or publication schedules, contact the Regulatory Secretariat (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755. Please cite FTR Case 2015-304.

    SUPPLEMENTARY INFORMATION:

    A. Background

    GSA published a proposed rule in the Federal Register on January 8, 2016 (81 FR 883). The rule proposed to amend the FTR by expanding the definition of “incidental expenses” (IE) to include ATM fees. Additionally, the rule proposed to amend the FTR by clarifying that agencies have discretion regarding the reimbursement of expenses related to laundry, cleaning, and pressing of clothing for official travel within CONUS that involves four or more consecutive nights of lodging.

    The public had 60 calendar days to comment on the proposed rule. GSA received 22 comments from 19 respondents. Two respondents opposed the amendment in general, eleven addressed only the inclusion of ATM fees in the definition of IE, two addressed only the clarification concerning the final approval authority for the reimbursement for laundry, cleaning, and pressing of clothing expenses, three addressed both the proposed IE definition change and the laundry reimbursement clarification (which have been broken out separately below for ease of response), and one was out of scope. Some of these comments resulted in changes to this final rule.

    B. Analysis of Public Comments

    The two comments that opposed the amendment in general are summarized below:

    Comment: If travel is required to do mission related duties, how can there be a cap on the travel related expenses? The employee should not have to pay out of pocket to do their job.

    Comment: As a government engineer, I am already paid less than my private industry counterparts and now it appears that I am expected to pay my own travel expenses as well.

    Response: The final rule changes will have a minimal impact on employee reimbursements for official travel. When necessary to fairly compensate travelers, agencies will retain the discretion to authorize the reimbursement for the cost of ATM fees and/or the cost for laundry, cleaning, and pressing of clothing services while employees are on official travel within CONUS for four or more consecutive nights.

    The fourteen comments concerning ATM fees being included in the definition of IE are summarized below:

    Comment: Proposing to change ATM fees to incidental expenses as part of per diem is patently unfair to Federal employees. You would be forcing employees ordered to travel (many times against the will or convenience of employees) as part of their work duties to subsidize the Federal government's operating costs especially considering the expensive costs of eating at restaurants in many cities.

    Comment: An employee conducting official business for the government should not be required to use personal funds to augment travel costs. We do not have control over the fees charged by the banks for using their ATMs and we do not have control over fees for “cash advance” charged by the government credit card issuer.

    Comment: This is not a fair assessment to move the expense of ATM fees under the incidental expense included in the M&IE. It would cause the traveler to come out of pocket for official business.

    Comment: Moving ATM fees from miscellaneous expenses to incidental expenses means that employees of official travel will have to use per diem funds to pay for ATM fees instead of those available for meals and lodging.

    Comment: Employees on short trips will receive insufficient incidental expense reimbursement to reimburse the employee for all ATM fees incurred, thereby requiring the employee to pay for the ATM fees out-of-pocket. The proposal also gives agencies the discretion to determine when an employee will be separately reimbursed for ATM fees even though the fees are part of incidental expense allowance. We believe this will result in a disproportionate increase in administrative time required to determine when ATM fees are payable as miscellaneous expenses when compared to any cost savings realized from the proposed regulatory change.

    Comment: Moving the ATM fee from a miscellaneous expense to an incidental expense puts the burden of government travel onto the traveler which shouldn't be allowed. There are times when an employee might be on travel for a week or more and the ATM fee (with the foreign ATM fee and .025 fee of the total amount) would easily exceed the $5 incidental expense allowance. This goes against the precept that it should not cost the employee to conduct government business (travel).

    Comment: The $5 limit for incidental expenses will be inadequate to reimburse the actually incurred expenses of employees who use their Citi Travel Cards to obtain cash advances for their TDY. This proposed rule change does not appear to account for these reasonably anticipated costs it will prohibit agencies from reimbursing, to the detriment of employees on TDY.

    Comment: My agency has put in place restrictions on how much cash we are able to get from ATMs, despite the fact we are advised in many countries to only use cash and not the credit card due to fraud. In all cases we are assessed an ATM fee in the foreign country and again by the travel card. This proposed regulation may mean I end up eating some or all of these costs on my own.

    Comment: I disagree with including ATM services and fees as part of per diem allowance. Our agency has a large number of traveler's that use the ATM to get advanced funds.

    Comment: Section 301-12.1 removes ATM fee as a miscellaneous travel expense and does not give agencies discretion to pay ATM fees as a miscellaneous expense. Section 300-70.200(h) implies that an agency or approving official can determine if the ATM fees can be paid as a separate miscellaneous expense, if warranted (e.g., forced gratuity or other incidental expenses, which may exhaust the allowance to cover the cost of ATM fees). Sections 301-12.1 and 300-70.200 are contradictory and need to be revised.

    Comment: If GSA wishes to embed the ATM fees inside the incidental expenditures part of the traveler reimbursement, then GSA should do a nation-wide survey on incidental expenses. If GSA is unwilling to update the incidental expenses inside CONUS, then the ATM fees should remain a miscellaneous expense reimbursement, fully reimbursable for federal employees.

    Comment: It is unfair to make them pay these mandated fees which will easily exceed the daily incidental rate. Unlike the USA where taxi, bus, and even the smallest restaurants accept travel cards as payment, many international locations require local cash currency for valid travel related expenses. It is unfair to expect employees to pay for the required currency transaction, exchange rate, ATM surcharges and travel card cash advance fees when this entire system was put in place for government convenience and to reduce government costs by eliminating cashiers necessary to dispense foreign travel currency.

    Comment: It is not fair that reimbursement for ATM fees for the use of the government card will no longer be a separate miscellaneous item, but will be lumped in with the incidental expenses. The incidental expenses are those that we, as travelers may or may not choose to make. We are required to expend the ATM fees for the use of the government card. This is because we are required by Federal law to use the government travel card (and ONLY the government travel card) when obtaining cash for travel.

    Comment: The incidental fees for baggage, porters, etc. are discretionary based on the traveler's decision. ATM fees are not discretionary. A traveler is entitled to a cash advance for MI&E expenses which means incurring an ATM fee.

    Response: Based upon these comments, GSA will neither add ATM fees to the definition for “incidental expenses,” nor amend FTR 301-70.200 regarding internal per diem policy, and will continue to list ATM fees as a miscellaneous expense. Agencies will continue to have discretion regarding the reimbursement of ATM fees. In those instances when directly using the Government contractor-issued travel charge card may not be feasible, the amendment to section 301-70.301 mandates agencies to establish policies and procedures governing who will determine if miscellaneous expense reimbursement is appropriate in connection with official travel, to include transaction fees for use of ATMs) when using the Government contractor-issued charge card. If there is a valid reason why the traveler cannot use the Government travel charge for lodging and meals, agencies have the option to fully reimburse travelers for ATM fees. As a result, GSA has updated the language in this final rule based upon these comments.

    The five comments that addressed clarification of the policy relating to laundry, cleaning, and pressing of clothing expenses are summarized below:

    Comment: I have been involved with DoD travel vouchers and claims for over 30 years and recommend not to authorize laundry and dry cleaning as a reimbursable expense. Leave it as an incidental expense.

    Comment: When TDY for more than a week, laundry usually has to be cleaned. While at the home station, most employees own washers and dryers to do their own laundry. Cleaning laundry while TDY is an added expense that would not otherwise exist and therefore should be covered by miscellaneous expenses and not incidentals.

    Comment: The change makes the reimbursement for laundry, cleaning and pressing of clothing at the discretion of the agency. This will permit the agency to disallow these expenses entirely.

    Comment: We recommend that GSA completely eliminate the reimbursement of laundry, dry cleaning, and pressing of clothing, as these expenses are not a direct consequence of traveling. Employees would incur the same expenses for laundry, dry cleaning, and pressing of clothing at their official duty station if they were not in travel status.

    Comment: 301-11.31 needs to include a minimum number of days or proof of expense must be provided. We have no way of proving if the expense actually occurred, except for dry cleaning. If you make this expense more lenient, we will have traveler's claiming laundry for a single overnight stay.

    Response: The cost of laundry, cleaning, and pressing of clothing services will continue to be treated as a discretionary, miscellaneous expense. The change in regulatory language is intended to clarify that agencies are responsible for making the final decision with respect to approving this type of expense. Although the FTR stipulates that a TDY trip must be at least four consecutive nights for the traveler to be eligible for reimbursement of laundry and dry cleaning expenses, agencies have the discretion to establish a higher number of minimum nights. Additionally, agencies may choose to deny reimbursement for any laundry, dry cleaning, and clothes pressing expenses. The agency's internal policies should address what the agency will require for the traveler to receive approval for reimbursement for these expenses. This, GSA will not change the language in the amendment based upon these comments.

    The following comment was out of scope as it does not pertain to the subject matter of this amendment, and as a result, no change will be made in response:

    Comment: With everyone having computers, why is there a need for so much travel? Video conferencing costs a fraction of sending ten people to Los Angeles for a convention.

    C. Major Changes in This Final Rule

    Based upon the comments received, this final rule does not include ATM fees within the definition of “incidental expenses,” but rather leaves reimbursement of these expenses as a miscellaneous expense, and further clarifies that reimbursement for these fees is within the agency's discretion.

    D. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. GSA has determined that this final rule is not a significant regulatory action is not subject to review under section 6(b) of Executive Order 12866. GSA has further determined that this final rule is not a major rule under 5 U.S.C. 804.

    E. Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

    F. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

    G. Small Business Regulatory Enforcement Fairness Act

    This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801. This final rule is not a major rule under 5 U.S.C. 804.

    List of Subjects in 41 CFR Parts 301-11 and 301-70

    Government employees, Travel and transportation expenses; Administrative practice and procedures, and Individuals with disabilities.

    Dated: August 3, 2016. Denise Turner Roth, Administrator of General Services.

    For the reasons set forth in the preamble, pursuant to 5 U.S.C. 5701-5711, GSA amends 41 CFR parts 301-11 and 301-70 as set forth below:

    PART 301-11—PER DIEM EXPENSES 1. The authority citation for 41 CFR part 301-11 continues to read as follows: Authority:

    5 U.S.C. 5707.

    2. Revise § 301-11.31 to read as follows:
    § 301-11.31 Are laundry, cleaning and pressing of clothing expenses reimbursable?

    Your agency may reimburse the expenses incurred for laundry, cleaning, and pressing of clothing as a miscellaneous travel expense for TDY within CONUS. However, you must incur a minimum of four consecutive nights lodging on official travel to qualify for this reimbursement. Laundry and dry cleaning expenses have not been removed from foreign per diem rates established by the Department of State, or from non-foreign area per diem rates established by the Department of Defense. Separate claims for laundry and dry cleaning expenses incurred in foreign areas and non-foreign areas are not allowed.

    PART 301-70—INTERNAL POLICY AND PROCEDURE REQUIREMENTS 3. The authority citation for 41 CFR part 301-70 continues to read as follows: Authority:

    5 U.S.C. 5707; 40 U.S.C. 121(c); Sec. 2, Pub. L. 105-264, 112 Stat. 2350 (5 U.S.C. 5701, note), OMB Circular No. A-126, revised May 22, 1992, and OMB Circular No. A-123, Appendix B, revised January 15, 2009.

    4. Amend § 301-70.301 by revising paragraph (c) to read as follows:
    § 301-70.301 What governing policies must we establish for payment of miscellaneous expenses?

    (c) Who will determine if other miscellaneous expenses are appropriate for reimbursement in connection with official travel, including but not limited to, fees for the use of automated teller machine (ATMs) when using the Government contractor-issued travel charge card and expenses for laundry, cleaning, and pressing of clothing.

    [FR Doc. 2016-21993 Filed 9-13-16; 8:45 am] BILLING CODE 6820-14-P
    GENERAL SERVICES ADMINISTRATION 41 CFR Parts 301-51 and 301-70 [FTR Amendment 2016-01; FTR Case 2015-303; Docket No. 2016-0005, Sequence No. 1] RIN 3090-AJ68 Federal Travel Regulation; Optimal Use of the Government Contractor Issued Travel Charge Card AGENCY:

    Office of Government-wide Policy (OGP), General Services Administration (GSA).

    ACTION:

    Final rule.

    SUMMARY:

    GSA is amending the Federal Travel Regulation (FTR) by updating the exemptions from mandatory use of the Government contractor-issued travel charge card to ensure the card is used as often as practicable.

    DATES:

    Effective: September 14, 2016.

    Applicability: Federal agencies have until November 14, 2016 to apply this rule to their internal policies.

    FOR FURTHER INFORMATION CONTACT:

    For clarification of content, contact Mr. Cy Greenidge, Program Analyst, Office of Government-wide Policy, at 202-219-2349. For more information pertaining to status or publication schedules, contact the Regulatory Secretariat (MVCB), 1800 F Street NW., Washington, DC 20405, 202-501-4755. Please cite FTR Case 2015-303.

    SUPPLEMENTARY INFORMATION: A. Background

    GSA published a proposed rule in the Federal Register on January 29, 2016 (81 FR 5007). That rule proposed amending the FTR to emphasize the need for agencies to maximize Government contractor-issued travel charge card rebates by increasing the use of the card. Additionally, this rule proposed updating the classes of official travel expenses and employees that are exempt from mandatory use of the Government contractor-issued travel charge card, with the goal of increasing the issuance and appropriate use of the cards by employees on official travel.

    The public had 60 calendar days to comment on the proposed rule. GSA received six comments. Four comments applied to the proposed rule; however, one did not fall under the purview of this office, and the other was out-of-scope based upon the subject matter of the final rule. As a result of the applicable comments, GSA made changes to the rule, although these changes are not considered to be significant.

    B. Analysis of Public Comments

    Comment: Proposed paragraph 301-70.700(d) should be revised. It should begin with “If it is not in the interest of the Government to do so . . .”

    Response: Upon reflection, GSA determined the proposed amendment to § 301-70.700 to be unnecessary, and therefore, it has been removed.

    Comment: Federal agencies cannot verify/enforce that their travelers charge all official travel expenses to the Government travel charge card. As a result of this change in practice, verifying the charge card method of payment has become a more labor intensive/expensive process thus nullifying the benefits derived from generating additional travel charge card rebates.

    Response: The purpose of this amendment is to increase the use of the Government contractor-issued travel charge card by limiting the number of exemptions, as opposed to verifying or enforcing that travelers actually use these cards. Section 301-70.700 already requires that employees, unless exempted, use the Government contractor-issued travel charge card for official travel expenses. Agencies should already have an established verification process in place. Thus, GSA will not change the language in the amendment based upon this comment.

    Comment: I agree with the changes to § 301-51.2 because it requires more travelers to have and use the Government contractor-issued travel charge card. While §§ 301-70.700, 301-70.701, and 301-70.704 gives the agency a way to exempt employees with poor credit or high delinquency rates.

    Response: Respondent is in agreement with the final rule. While GSA removed the proposed amendments to §§ 301-70.700 and 301-70.701 as unnecessary, agencies retain the authority to exempt any payment, person, type or class of payments, or type or class of agency personnel if the exemption is determined to be necessary in the interest of the agency.

    Comment: In the FTR proposal, it is written: If an employee is deemed eligible for a Government contractor-issued travel charge card and is expected to travel, the card must be issued and activated within 60 days of the travel charge card eligibility date, as determined by the agency. The proposal does not state any actions to take if the account is not activated within 60 days. Will GSA be writing something in the FTR that will further clarify what actions should be taken if the cardholder does not activate the account within 60 days?

    Response: Employees are required to activate the Government contractor-issued travel charge card when received. Agencies should develop internal policy addressing what actions to take if an employee fails to activate the card within 60 days of receipt. GSA has updated sections §§ 301-51.1 and 301-70.708 to address this comment.

    Comment: Travel cards for official use can be better managed if bills go to a central office for approval and payment. This will also eliminate the massive misuse of the cards. Additionally, it will take the card holder out of the loop for late fees and potential impact on their credit scores.

    Response: This comment is outside the scope of this rule, and as such, no change will be made to the language of the amendment based upon this comment.

    Comment: Section 301-12.1 removes ATM fee as a miscellaneous travel expense and does not give agencies discretion to pay ATM fees as a miscellaneous expense. Section 300-70.200(h) implies that an agency or approving official can determine if the ATM fees can be paid as a separate miscellaneous expense, if warranted (e.g., forced gratuity or other incidental expenses, which may exhaust the allowance to cover the cost of ATM fees). Sections 301-12.1 and 300-70.200 are contradictory and need to be revised.

    Response: This comment is outside the scope of this rule, and as such, no change will be made to the language of the amendment based upon this comment.

    C. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. GSA has determined that this final rule is not a significant regulatory action is not subject to review under section 6(b) of Executive Order 12866. GSA has further determined that this final rule is not a major rule under 5 U.S.C. 804.

    D. Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

    E. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

    F. Small Business Regulatory Enforcement Fairness Act

    This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801. This final rule is not a major rule under 5 U.S.C. 804.

    List of Subjects in 41 CFR Parts 301-51 and 301-70

    Government employees, Travel and transportation expenses, Paying travel expenses, Internal policy and procedure requirements.

    Dated: August 3, 2016. Denise Turner Roth, Administrator of General Services.

    For the reasons set forth in the preamble, pursuant to 5 U.S.C. 5701-5711, GSA amends 41 CFR parts 301-51 and 301-70 as set forth below:

    PART 301-51—PAYING TRAVEL EXPENSES 1. The authority citation for 41 CFR part 301-51 continues to read as follows: Authority:

    5 U.S.C. 5707. Subpart A is issued under the authority of Sec. 2, Pub. L. 105-264, 112 Stat. 2350 (5 U.S.C. 5701 note); 40 U.S.C. 121(c).

    2. Revise § 301-51.1 to read as follows:
    § 301-51.1 How must I use the Government contractor-issued travel charge card?

    You are required to activate the Government contractor-issued travel charge card once you receive it, and then use it as the method of payment for all official travel expenses unless exempted under § 301-51.2.

    3. Revise § 301-51.2 to read as follows:
    § 301-51.2 Are there any official travel expenses that are exempt from the mandatory use of the Government contractor-issued travel charge card?

    Expenses for which payment through the Government contractor-issued travel charge card is impractical (e.g., vendor does not accept credit cards) or imposes unreasonable burdens or costs (e.g., fees are charged for using the card) are exempt from use of the travel charge card. Your agency may also exempt an official travel expense when it is necessary in the interest of the agency (see § 301-51.4).

    §§ 301-51.3 through 301-51.8 [Redesignated as §§ 301-51.4 through 301-51.9]
    4. Redesignate §§ 301-51.3 through 301-51.8 as §§ 301-51.4 through 301-51.9, respectively. 5. Add a new § 301-51.3 to read as follows:
    § 301-51.3 What classes of employees are exempt from mandatory use of the Government contractor-issued travel charge card?

    The Administrator of General Services exempts the following classes of employees from mandatory use of the Government contractor-issued travel charge card:

    (a) Any employee who has an application pending for the Government contractor-issued travel charge card;

    (b) Any employee, when issuance of the Government contractor-issued travel charge card would adversely affect the mission or put the employee at risk; and

    (c) Any employee who is not eligible to receive a Government contractor-issued travel charge card.

    § 301-51.6 [Amended]
    6. In the newly designated § 301-51.6, after paragraph (c), revise the heading of the note to read “Note to § 301-51.6”. PART 301-70—INTERNAL POLICY AND PROCEDURE REQUIREMENTS 7. The authority citation for 41 CFR part 301-70 continues to read as follows: Authority:

    5 U.S.C. 5707; 40 U.S.C. 121(c); Sec. 2, Pub. L. 105-264, 112 Stat. 2350 (5 U.S.C. 5701, note), OMB Circular No. A-126, revised May 22, 1992, and OMB Circular No. A-123, Appendix B, revised January 15, 2009.

    § 301-70.702 [Amended]
    8. Amend § 301-70.702 by removing “MTT” and adding “MAE” in its place. 9. Revise § 301-70.704 to read as follows:
    § 301-70.704 What classes of employees are exempt from mandatory use of the Government contractor-issued travel charge card?

    The Administrator of General Services exempts the following classes of employees from mandatory use of the Government contractor-issued travel charge card:

    (a) Any employee who has an application pending for the Government contractor-issued travel charge card;

    (b) Any employee, when issuance of the Government contractor-issued travel charge card would adversely affect the mission or put the employee at risk; and

    (c) Any employee who is not eligible to receive a Government contractor-issued travel charge card.

    10. Revise § 301-70.708 to read as follows:
    § 301-70.708 What actions may we take if an employee fails to activate the Government contractor-issued travel charge card and/or misuses the travel charge card?

    Internal agency policies and procedures should be established defining what are considered to be misuses of the Government contractor-issued travel charge card. Appropriate action may be taken pursuant to those policies if an employee fails to activate the Government contractor-issued travel charge card within 60 days of receipt or misuses the travel charge card.

    [FR Doc. 2016-21987 Filed 9-13-16; 8:45 am] BILLING CODE 6820-14-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 73 [CDC Docket No. CDC-2016-0045] RIN 0920-AA64 Possession, Use, and Transfer of Select Agents and Toxins—Addition of Bacillus Cereus Biovar Anthracis to the HHS List of Select Agents and Toxins AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Interim final rule and request for comments.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) is adding Bacillus cereus Biovar anthracis to the list of HHS select agents and toxins as a Tier 1 select agent. We are taking this action to regulate this agent that is similar to B. anthracis to prevent its misuse, which could cause a biological threat to public health and/or national security.

    DATES:

    Effective date: The interim final rule is effective on October 14, 2016.

    Public comment period: Written or electronic comments must be submitted by November 14, 2016.

    Applicability dates: By October 14, 2016, any individual or entity that possesses B. cereus Biovar anthracis must provide notice to the CDC's DSAT regarding their possession of this agent and must secure the agent against theft, loss, release, or unauthorized access; and by March 13, 2017, an individual or entity that intends to continue to possess, use, or transfer this agent will be required to either register in accordance with 42 CFR part 73 or amend their current registration in accordance with 42 CFR 73.7(h) and meet all of the requirements of select agent regulations (42 CFR part 73).

    ADDRESSES:

    You may submit comments, identified by Docket No. CDC-2016-0045 or RIN 0920-AA64 by any of the following methods:

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

    Mail: Dr. Samuel Edwin, Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-A46, Atlanta, Georgia 30329, Attn: Docket CDC-2016-0045

    Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All relevant comments received will be posted without change to http://regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    Comments will also be available for public inspection from Monday through Friday, except for legal holidays, from 9 a.m. to 5 p.m., Eastern Time, at 1600 Clifton Road NE., Atlanta, Georgia 30329. Please call ahead to (404) 718-2000 and ask for a representative from the Division of Select Agents and Toxins to schedule your visit.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Samuel Edwin, Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-A46, Atlanta, Georgia 30329. Telephone: (404) 718-2000.

    SUPPLEMENTARY INFORMATION:

    The interim final rule is organized as follows:

    I. Public Participation II. Background A. Legal Authority B. Historical Background to This Rulemaking III. Rationale for Issuance of an Interim Final Rule IV. Alternatives Considered V. Required Regulatory Analyses A. Executive Orders 12866 and 13563 B. The Regulatory Flexibility Act C. Paperwork Reduction Act of 1995 D. EO 12988: Civil Justice Reform E. EO 13132: Federalism F. Plain Language Act of 2010 VI. References I. Public Participation

    Interested persons or organizations are invited to participate in this rulemaking by submitting written views, recommendations, and data. HHS/CDC invites comments on the following questions:

    (1) Are there other virulent (pBCXO1+ and pBCXO2+) strains of Bacillus species that should also be regulated?

    (2) What is the impact of designating B. cereus Biovar anthracis as a Tier 1 select agent?

    Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. HHS/CDC will consider comments that are received within 60 days of publication of this rule in the Federal Register. After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments that will be made to the rule as a result of the comments.

    II. Background A. Legal Authority

    HHS/CDC is promulgating this rule under the authority of sections 201-204 and 221 of Title II of Public Law 107-188, 116 Stat 637 (42 U.S.C. 262a).

    Subtitle A of Title II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, (42 U.S.C. 262a), requires HHS to regulate the possession, use, and transfer of biological agents or toxins that the HHS Secretary determines have the potential to pose a severe threat to public health and safety (select agents and toxins). Subtitle B of Title II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (which may be cited as the Agricultural Bioterrorism Protection Act of 2002), (7 U.S.C. 8401), requires the United States Department of Agriculture (USDA) to regulate the possession, use, and transfer of biological agents or toxins that the USDA Secretary determines have the potential to pose a severe threat to animal or plant health, or animal or plant products (select agents and toxins). Accordingly, HHS and USDA have promulgated regulations requiring individuals or entities that possess, use, or transfer select agents and toxins to register with HHS/CDC or USDA/Animal and Plant Health Inspection Service (APHIS). See 42 CFR part 73, 7 CFR part 331, and 9 CFR part 121 (the select agent regulations). The Federal Select Agent Program, a collaboration of HHS/CDC/Division of Select Agents and Toxins and USDA/APHIS/Agriculture Select Agent Services, administers the select agent regulations in a manner that minimizes the administrative burden on persons subject to the select agent regulations. USDA/APHIS is currently considering whether B. cereus Biovar anthracis should also be listed as a USDA select agent.

    B. Historical Background to This Rulemaking

    Emerging B. cereus strains that cause anthrax-like disease have been isolated in Cameroon (CA strain) and Côte d'Ivoire (CI strain). We are currently aware that geographic distribution of B. cereus Biovar anthracis is limited to some African countries, one registered entity in the United States, and one facility in Germany. The B. cereus strain being added to the HHS list of select agents is identified as B. cereus Biovar anthracis and described in the publication “Characterization of Bacillus anthracis-like bacteria isolated from wild great apes from Cote d'Ivoire and Cameroon” (Ref. 3, see table below). Recent research demonstrates that B. cereus Biovar anthracis has all of the virulence determinants and threat potential of Bacillus anthracis, a Tier 1 select agent (Ref. 1). A biovar is a group of microorganisms that are genetically similar but differ from other members of the species by biochemical or genetic characteristics. B. cereus Biovar anthracis was originally isolated about a decade ago from gorillas and chimpanzees exhibiting anthrax-like disease in Cameroon and Cote d'Ivoire (Ref. 3-6). Genomic characterization showed that these organisms belong to the B. cereus species and harbor two plasmids that are referred to as pBCXO1 and pBCXO2. The plasmid (pBCXO1) is very similar to pXO1, which is found in B. anthracis, and encodes active edema and lethal toxins. The plasmid (pBCXO2) is very similar to pXO2, which is found in B. anthracis, and encodes the enzymes that synthesize the poly-D-glutamic acid capsule. Thus, these organisms are genetically similar and produce all of the primary virulence factors (toxins and capsule) of B. anthracis. In addition, pBCXO2 has a functional hasACB operon that encodes a second capsule composed of hyaluronic acid (HA), which enhances the neuro-invasiveness of these organisms in laboratory models of infection (Ref. 1). Accordingly, because we believe that B. cereus Biovar anthracis has the same potential to pose a severe threat to public health as does Bacillus anthracis, currently regulated as a Tier 1 pathogen, we are adding Bacillus cereus Biovar anthracis to HHS select agent list by an interim final rule because we believe that any delay in bringing the possession, use, or transfer into the United States of this pathogen is contrary to the public interest. A biological agent is designated as Tier 1 when it is determined that it presents the greatest risk of deliberate misuse with significant potential for mass casualties or devastating effect to the economy, critical infrastructure, or public confidence, and poses a severe threat to public health and safety. We believe that Bacillus cereus Biovar anthracis presents the same threat to public health and national security as does Bacillus anthracis.

    In December 2015, the question of whether B. cereus Biovar anthracis should be regulated as a select agent was considered by HHS/CDC's Intragovernmental Select Agents and Toxins Technical Advisory Committee (ISATTAC). The ISATTAC is comprised of Federal government employees from CDC, the Biomedical Advanced Research and Development Authority (BARDA) within the Office of the Assistant Secretary for Preparedness and Response (ASPR), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), the Department of Homeland Security (DHS), the Department of Defense (DOD), the USDA/Animal and Plant Health Inspection Service (APHIS), USDA/Agricultural Research Service (ARS), and USDA Center for Veterinary Biologics (CVB). Based on the criteria outlined in the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (42 U.S.C. 262a), the ISATTAC considered the following in their review: The degree of pathogenicity (ability of an organism to cause disease), communicability (ability to spread from infected to susceptible hosts), ease of dissemination, route of exposure, environmental stability, ease of production in the laboratory, ability to genetically manipulate or alter, long-term health effects, untreated acute mortality, available therapeutics and vaccines, status of immunity, vulnerability of special populations, and the burden or impact on the health care system. The ISATTAC also considered whether B. cereus Biovar anthracis should be designated as a Tier 1 select agent. Executive Order 13546, “Optimizing the Security of Biological Select Agents and Toxins in the United States,” defines as “Tier 1” those select agents and toxins that present the greatest risk of deliberate misuse with the most significant potential for mass casualties or devastating effects to the economy, critical infrastructure; or public confidence (Ref. 7). At this time, HHS/CDC is not proposing to regulate other strains of B. cereus that have B. anthracis toxin genes as the data available do not suggest those strains pose a severe threat to public health (Ref. 1 and Ref. 8).

    The table below comes from “Bacteriological discrimination characteristics of atypical B. anthracis strains isolated from great apes, classic B. anthracis strains, and other strains of the B. cereus group” (Ref. 3).

    Microbiological characteristic Result a B. anthracis CI Primary culture Sub
  • culture
  • B. anthracis CA Primary culture Sub
  • culture
  • B. anthracis B. cereus
    Hemolysis +/− +/− + Motility + + + + + Susceptibility to gamma phage +/− +/− + Penicillin G S S/R R R S R Capsule + b +/− + +/− + Absent in vitro.c a S, sensitive; R, resistant; −, negative; +, positive; +/−, some subclones positive, others negative. b Capsule production on bicarbonate agar under a CO2 atmosphere and on blood agar under an ambient atmosphere. c Certain other Bacillus spp. can produce a polypeptide capsule but not under normal culture conditions.

    After reviewing scientific publications and consulting with subject matter experts, ISATTAC recommended that B. cereus Biovar anthracis should be listed as a HHS select agent and regulated as Tier 1 agent because:

    • Genomic characterization showed that B. cereus Biovar anthracis belongs to the B. cereus species, but it harbors virulence-associated plasmids that are similar to B. anthracis, a Tier 1 select agent (Ref. 1-2).

    • Fully virulent (pXO1+ pXO2+) strains of B. anthracis are currently regulated as Tier 1 select agent.

    • To date, there have been no reports of this biovar having been isolated from humans. However, B. cereus Biovar anthracis exhibited virulence, comparable to B. anthracis in animal models of subcutaneous and intranasal/inhalational anthrax (Ref. 3). Thus, it is reasonable to assume that B. cereus Biovar anthracis can infect humans by the same routes as B. anthracis. In areas (Cameroon and Cote d'Ivoire) where B. cereus Biovar anthracis has been isolated from gorillas and chimpanzees (Ref. 4-6), it is possible that isolates from human cases could be missed due to the lack of laboratory capacity and to the thorough characterization needed to differentiate B. anthracis from B. cereus Biovar anthracis.

    • As with B. anthracis, the virulence of this strain as a spore-forming bacterium may make it attractive to those that wish to circumvent the select agent regulations for nefarious purposes.

    • PBCXO2—strains of B. cereus Biovar anthracis (analogous to B. anthracis veterinary vaccine Sterne strain) produce a HA capsule from genes present on pBCXO1. Studies have shown such variants (pBCXO2−) are still as virulent as B. anthracis in animal models (Ref. 1).

    • There is no apparent difference between this organism and B. anthracis with respect to the criteria used to designate B. anthracis as a Tier 1 agent.

    In addition, the Federal Experts Security Advisory Panel (FESAP) provided policy and technical input for the recommendation to list B. cereus Biovar anthracis as an HHS select agent and regulated as Tier 1 agent. The mission of the FESAP is to make technical and substantive recommendations concerning the appropriate safeguards and security standards for persons possessing, using, or transferring BSAT. The goal of the FESAP is that their recommendations be commensurate with the risk that such agents or toxins pose to public health and safety, including the risk of their use in domestic or international terrorism. The FESAP drew from the expertise of its membership, information from presentations by several federal department and agency subject matter experts, and technical input from the Directors of the Federal Select Agent Program (FSAP) to develop its recommendation. The FESAP has issued a draft report that recommended listing B. cereus biovar anthracis as a select agent (not Tier 1).

    After consideration of all of the above, HHS/CDC has determined that B. cereus Biovar anthracis should be listed as a Tier 1 HHS select agent given its similarities to B. anthracis, which is consistent with current regulatory requirements for B. anthracis.

    III. Rationale for Issuance of an Interim Final Rule

    Agency rulemaking is governed by section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) which, unless the rule falls within one of the exemptions, requires that HHS/CDC publish a notice of proposed rulemaking in the Federal Register that provides interested persons an opportunity to submit written data, views, or arguments. Section 553(b)(B) of the APA authorizes a department or agency to dispense with the prior notice and opportunity for public comment requirement for “good cause” if the department or agency finds that it is contrary to the public interest.

    B. cereus Biovar anthracis has all of the virulence characteristics and threat potential of Bacillus anthracis, which is already regulated as a Tier 1 select agent. Accordingly, for the reasons stated above, we have determined that B. cereus Biovar anthracis not only also has the potential to pose a severe threat to public health and safety; but that it may present a great risk for deliberate misuse with a significant potential for mass casualties or devastating effects to the economy, critical infrastructure; or public confidence. We are taking this action to place this agent under the biosafety and security requirements of the select agent regulations; and to regulate its possession and transfer to prevent an accidental release or its misuse. We believe this interim final rule is in the best interest of public health and national security.

    Pursuant to 5 U.S.C. 553(b)(3)(B), and for the reasons stated above, we therefore find that there is good cause to dispense with prior public notice and the opportunity to comment on this rule before it becomes effective because any delay in promulgating the rule would be contrary to the public interest.

    IV. Alternatives Considered

    In researching this addition to the HHS select agents and toxins list, we also considered whether B. cereus Biovar anthracis should be designated as a non-Tier 1 agent. We concluded that B. cereus Biovar anthracis should be regulated as a Tier 1 select agent for the same reason that we currently regulation B. anthracis as a Tier 1 select agent.

    V. Required Regulatory Analyses A. Executive Orders 12866 and 13563

    HHS/CDC has examined the impacts of this interim final rule (IFR) under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993) and Executive Order 13563, Improving Regulation and Regulatory Review, (76 FR 3821, January 21, 2011). Both Executive Orders direct agencies to evaluate any rule prior to promulgation to determine the regulatory impact in terms of costs and benefits to United States populations and businesses. Further, together, the two Executive Orders set the following requirements: Quantify costs and benefits where the new regulation creates a change in current practice; define qualitative costs and benefits; choose approaches that maximize benefits; support regulations that protect public health and safety; and minimize the impact of regulation. HHS/CDC has analyzed this IFR as required by these Executive Orders and has determined that it is consistent with the principles set forth in the Executive Orders and the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA). We anticipate that the rule will create minimal impact.

    This regulatory impact section presents the anticipated costs and benefits that are quantified where possible. Where quantification is not possible, a qualitative discussion is provided of the costs and/or benefits that HHS/CDC anticipates from issuing this regulation.

    Need for the Regulation

    Bacillus cereus Biovar anthracis is a recently recognized, emerging pathogens that has all the virulence characteristics and threat potential of Bacillus anthracis, a Tier 1 select agent. This organism is not currently on the HHS List of Select Agents and Toxins; we are proposing regulating this organism as a Tier 1 select agent because of its potential for misuse and its threat to public health and safety.

    Regulatory Impact Analysis Costs

    Currently, the only entity in possession of this agent is already registered to possess Tier 1 select agents. As a result, the burden associated with this entity is minimal. However, this rule will also affect entities which plan to possess the agent in the future. We believe that these entities fall into three categories: Entities not currently registered for a select agent or toxin, and entities already registered with the Federal Select Agent Program (FSAP) but not for a Tier 1 agent or toxin, and entities already registered to possess a Tier 1 agent, such as the one already in possession of the agent. Based on the 2012 Select Agent Final Rule, entities already registered with the FSAP but not for a Tier 1 agent or toxin will incur costs of approximately $10,000-$15,000 in order to possess the agent, and median annualized costs to entities not currently registered to possess select agent or toxin are estimated to be approximately $37,000 in order to possess the agent. As noted, for entities already registered to possess a Tier 1 agent, costs are estimated to be minimal. However, we lack data to forecast the number of entities beyond the one entity we are currently aware of that will possess this agent in the future, and as a result we do not estimate the total associated costs.

    Benefits: The agents and toxins placed on the HHS selects and toxins list have the potential to pose severe threats to public health and safety. The benefits of the HHS/CDC interim final rule derive from the strengthened prevention against the accidental or intentional release of B. cereus Biovar anthracis. We based the following assumption on the release of B. anthracis that occurred in 2001. The cost of such an event in human life could be high. An outbreak of B. cereus Biovar anthracis also would require a complex and expensive emergency response effort. This effort would include extensive public health measures, such as quarantine, isolation, preventive treatment and health testing for large numbers of potentially exposed persons, and extensive decontamination. Substantial costs would likely be incurred by hospitals and other medical facilities and institutions of government at all levels.

    An outbreak of B. cereus Biovar anthracis, or widespread fear of one, also would likely create significant secondary effects to society including a potentially rapid increase in health anxiety among healthy individuals. This may result in overcrowded healthcare facilities and emergency rooms, and the disruption of everyday business operations, transportation, and other normal behavior.

    Impacts from the October 2001 anthrax attacks exemplify the costs that the regulatory revisions will help to prevent. The anthrax attacks caused five fatalities and seventeen illnesses, disrupted business and government activities, closed substantial parts of the U.S. Postal Service, and caused widespread apprehension and changes in behavior. Costs included more than $23 million to decontaminate one Senate office building, approximately $2 billion in revenues lost to the postal service, and as much as $3 billion in additional costs to the U.S. Postal Service for cleanup of contamination and procurement of mail-sanitizing equipment (referenced from the Regulatory Impact Analysis from the 2012 Select Agent Regulations Final Rule). There were substantial costs due to lost productivity throughout the economy and investigations into the incident (referenced from the Regulatory Impact Analysis from the 2012 Select Agent Regulations Final Rule).

    A deliberate release of B. cereus Biovar anthracis may cause wide-ranging impacts to the economy, potential loss of market access for consumer goods and services, other disruptions to society, and diminished confidence in public and private institutions.

    Comparison of Costs and Benefits: In our analysis, we determined that only one entity that already possesses Tier 1 select agents in the United States is in possession of B. cereus Biovar anthracis. As noted above, the cost to the entity would be minimal. Also noted above, this rule will affect entities that plan to possess the agent in the future. Based on the 2012 Select Agent Final Rule, entities already registered with the FSAP but not for a Tier 1 agent or toxin will incur costs of approximately $10,000-$15,000 in order to possess the agent, and median annualized costs to entities not currently registered to possess select agent or toxin are estimated to be approximately $37,000 in order to possess the agent. For entities already registered to possess a Tier 1 agent, costs are estimated to be minimal.

    The benefit of regulating this organism is the prevention of an outbreak of disease due to this organism. An analysis of the 2001 anthrax incident shows the impact of the outbreak in terms of loss of life, illness, decontamination costs, and loss of productivity.

    Based on this analysis, we believe the benefit of this rulemaking outweighs the costs.

    B. The Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA)

    We have examined the impacts of the interim final rule under the Regulatory Flexibility Act (5 U.S.C. 601-612). Unless we certify that the interim final rule is not expected to have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), requires agencies to analyze regulatory options that would minimize any significant economic impact of a rule on small entities. Based on our current knowledge of who possesses B. cereus Biovar anthracis, we certify that this interim final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

    This regulatory action is not a major rule as defined by Sec. 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This interim final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

    C. Paperwork Reduction Act of 1995

    In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rulemaking are currently approved by the Office of Management and Budget (OMB) under OMB control number 0920-0576, expiration date 12/31/2018. This includes the burden on entities to submitted amendments to their registrations.

    We expect that the entities who will register for possession, use, or transfer of B. cereus Biovar anthracis will already be registered with the Federal Select Agent Program. This rulemaking will require such an entity to amend its registration with the Federal Select Agent Program using relevant portions of APHIS/CDC Form 1 (Application for Registration for Possessing, Use, and Transfer of Select Agents and Toxins). Estimated time to amend this form is one hour for one select agent. Additionally, any registered entity that wishes to transfer B. cereus Biovar anthracis will be required to submit information using APHIS/CDC Form 2 (Request to Transfer of Select Agent and Toxins). Estimated average time to complete this form is one hour. Based upon the limited publications on this agent at this time, we estimate that only one registered entity may add B. cereus Biovar anthracis to their registration or transfer B. cereus Biovar anthracis to another registered entity. Therefore, we calculate that there is no increase in the number of respondents that need to submit an application for registration, we estimate the total number of responses for entities to submit an amendment to their registration may increase by one, and the total burden hours may increase to one hour.

    D. E.O. 12988: Civil Justice Reform

    This rule has been reviewed under E.O. 12988, Civil Justice Reform. Once the interim final rule is in effect, HHS/CDC notes that: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

    E. E.O. 13132: Federalism

    HHS/CDC has reviewed this interim final rule in accordance with Executive Order 13132 regarding Federalism, and has determined that it does not have “federalism implications.” The 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.”

    In accordance with section 361(e) of the PHSA [42 U.S.C. 264(e)], nothing in this rule would supersede any provisions of State or local law except to the extent that such a provision conflicts with this rule.

    F. Plain Language Act of 2010

    Under the Plain Language Act of 2010 (Pub. L. 111-274, October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS/CDC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.

    VI. References 1. Brezillon, C, Hauslant, M, Dupke, S, Corre, JP, Lander, A, Franz, T, Monot, M, Couture-Tosi, E, Jouvion, G, Leendertz, FH, Grunow, R, Mock, ME, Klee, SR, and Goossens, L. (2015) Capsules, toxins and AtxA as virulence factors of emerging Bacillus cereus Biovar anthracis. PLOS Negl. Trop. Dis. 9(4):e0003455. 2. Helgason E, Tourasse NJ, Meisal R, Caugant DA, Kolstø AB (2004) Multilocus sequence typing scheme for bacteria of the Bacillus cereus group. Appl Environ Microbiol 70: 191-201. 3. Klee SR, Ozel M, Appel B, Boesch C, Ellerbrok H, et al. (2006) Characterization of Bacillus anthracis-like bacteria isolated from wild great apes from Cote d'Ivoire and Cameroon. J Bacteriol 188: 5333-5344. 4. Leendertz FH, Ellerbrok H, Boesch C, Couacy-Hymann E, Matz-Rensing K, et al. (2004) Anthrax kills wild chimpanzees in a tropical rainforest. Nature 430: 451-452. 5. Leendertz FH, Yumlu S, Pauli G, Boesch C, Couacy-Hymann E, et al. (2006) A new Bacillus anthracis found in wild chimpanzees and a gorilla from west and central Africa. Plos Pathog 2: e8. 6. Leendertz FH, Lankester F, Guislain P, Néel C, Drori O, et al. (2006) Anthrax in Western and Central African great apes. Am J Primatol 68: 928-933. 7. Report of the Working Group on Strengthening the Biosecurity of the United States, Executive Order 13486 Working Group (http://edocket.access.thefederalregister.org/2009/pdf/E9-818.pdf). 8. Avashia SB, et al. (2007) Fatal pneumonia among metalworkers due to inhalation exposure to Bacillus cereus containing Bacillus anthracis toxin genes. Clin. Infect. Dis. 44:414-416. List of Subjects in 42 CFR Part 73

    Biologics, Packaging and containers, Penalties, Reporting and recordkeeping requirements, Transportation.

    For the reasons stated in the preamble, we are amending 42 CFR part 73 as follows:

    PART 73—SELECT AGENTS AND TOXINS 1. The authority citation for part 73 continues to read as follows: Authority:

    42 U.S.C. 262a; sections 201-204, 221 and 231 of Title II of Public Law 107-188, 116 Stat. 637 (42 U.S.C. 262a).

    § 73.3 [Amended]
    2. Amend § 73.3(b) by adding the term “Bacillus cereus Biovar anthracis*” in alphabetical order. Dated: September 8, 2016. Sylvia M. Burwell, Secretary.
    [FR Doc. 2016-22049 Filed 9-13-16; 8:45 am] BILLING CODE 4163-18-P
    NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1816, 1832, 1842, and 1852 RIN 2700-AE34 NASA Federal Acquisition Regulation Supplement: Revised Voucher Submission & Payment Process (NFS Case 2016-N025) AGENCY:

    National Aeronautics and Space Administration.

    ACTION:

    Interim rule.

    SUMMARY:

    NASA is issuing an interim rule amending the NASA Federal Acquisition Regulation Supplement (NFS) to implement revisions to the voucher submittal and payment process. These revisions are necessary due to section 893 of the National Defense Authorization Act for Fiscal Year 2016 prohibiting the Defense Contract Audit Agency (DCAA) from performing audit work for non-Defense Agencies. NASA had delegated to DCAA the task of reviewing contractor requests for payment under NASA cost-type contracts.

    DATES:

    Effective: September 14, 2016.

    Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before November 14, 2016, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by NFS Case 2016-N025, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “NFS Case 2016-N025” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “NFS Case 2016-N025.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “NFS Case 2016-N025” on your attached document.

    Email: [email protected] Include NFS Case 2016-N025 in the subject line of the message.

    Fax: (202) 358-3082.

    Mail: National Aeronautics and Space Administration, Headquarters, Office of Procurement, Contract and Grant Policy Division, Attn: John J. Lopez, LP-011, 300 E Street SW., Washington, DC 20546-0001.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John J. Lopez, NASA HQ, Office of Procurement, Contract and Grant Policy Division, LP-011, 300 E Street SW., Washington, DC 20456-0001. Telephone 202-358-3740; facsimile 202-358-3082.

    SUPPLEMENTARY INFORMATION:

    I. Background

    This interim rule revises the NFS to implement revisions to the voucher submittal and payment process. These revisions are necessary due to section 893 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) prohibiting DCAA from performing audit work for non-Defense Agencies. Section 893 prohibits DCAA from performing audit work for non-Defense Agencies until DCAA's backlog of incurred cost audits is below 18 months. DCAA's current backlog of cost audits is greater than 18 months. NASA had delegated to DCAA the task of reviewing contractor requests for payment under its cost-type contracts. As a result of section 893, DCAA has ceased cost voucher audit support to NASA, in turn, jeopardizing timely payment to contractors for work performed. NASA has revised its cost voucher submission and payment process to ensure the continued prompt payment to its suppliers. Accordingly, the NFS needs to be immediately revised to implement procedural changes to minimize cost voucher submission and payment delays to NASA suppliers as well the potential accrual of Government interest payments to contractors.

    II. Discussion

    Sections of the NFS are being revised to implement changes to NASA's voucher submission and payment process. Specifically, NASA is—

    • Deleting the outdated clause prescription at NFS 1816.307-70(e) and associated clause at NFS 1852.216-87 relating to the submission of vouchers for payment;

    • Establishing a new clause prescription at NFS 1832.908-70 and associated clause at 1852.232-80 relative to the submission of vouchers for payment that reflects electronic submittal of vouchers and NASA resources processing these payment requests versus DCAA;

    • Deleting NFS section 1842.7101(a) and (b) because DCAA is no longer processing vouchers for NASA; thus this guidance is no longer needed; and

    • Deleting NFS section 1842.7101(c) because the requirement of submitting additional hard copies of Standard Form 1034 and Standard Form 1035A to the General Services Administration (GSA) is no longer required. This outdated process is being replaced by electronic submissions.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    NASA does not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the guidance will not create additional burden to the contractor but rather the rule is intended to update the current voucher submission process at NASA, which will result in fewer voucher rejections, rework, and payment delays. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    NASA is revising the NFS to implement revisions to the voucher submittal and payment process. These revisions are necessary due to section 893 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) prohibiting DCAA from performing audit work for non-Defense Agencies.

    The objective of this rule is to remove the outdated NFS payment clause and associated prescription relative to the NASA voucher submittal and payment process and replace with a new clause that will revamp NASA's cost voucher submission and payment process to ensure the continued prompt payment to its suppliers. The revision will also minimize cost voucher submission and payment delays to NASA suppliers as well the potential accrual of Government interest payments to contractors.

    This rule would apply to contractor requests for payment under cost reimbursement contracts. An analysis of data in the Federal Procurement Data System (FPDS) revealed that cost reimbursement contracts are primarily awarded to large businesses. FPDS data compiled over the past three fiscal years (FY2013 through FY2015) showed an average of 311 active cost reimbursement NASA contracts, of which 141 (approximately 45%) were awarded to small businesses. However, there is no significant economic or administrative cost impact to small or large businesses because the rule will have a positive benefit in the way of fewer voucher rejections, rework, and payment delays. The rule does not contain additional reporting requirements, recordkeeping, or other compliance requirements.

    The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternative approaches were considered, because this approach will have minimal impact on small entities.

    NASA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (NFS Case 2016-N025), in correspondence.

    V. Paperwork Reduction Act

    The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes to the NFS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0070, entitled Payments—FAR Sections Affected: 52.232-1 thru 52.232-4 and 52.232-6 thru 52.232-11.

    VI. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Administrator of the National Aeronautics and Space Administration that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action to revise the submission of vouchers for payment process is necessary to avert the rejection of contractor payment requests and potential payment delays, which will result in annual cost avoidance to the Government of approximately $383,000. In addition, we anticipate the Government potentially avoiding approximately $134,000 in late payment interest charges.

    Section 893 of the National Defense Authorization Act for Fiscal Year 2016 prohibits the Defense Contract Audit Agency (DCAA) from performing audit work for non-Defense Agencies. NASA had delegated to DCAA the task of reviewing contractor requests for payment under our cost type contracts. This interim rule is needed to ensure that contractors have the correct procedures for submitting vouchers for payment. The existing contract payment clause has submittal of vouchers to DCAA for review, however, DCAA is no longer reviewing and approving contractor payment requests for NASA. Furthermore, if contractors continue to submit payment requests to DCAA, DCAA will reject them causing a delay in contractor payments. In turn, this will cause additional effort for contractors to rework and resubmit the voucher for payment. Immediate implementation of this rule will prevent unnecessary rework and resubmission of payment requests by the contractor and preclude delayed payments resulting in annual cost avoidance of approximately $383,000. This interim rule ensures prompt awareness of and compliance by contractors with the new submission of vouchers procedures. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), NASA will consider public comments received in response to this interim rule in the formation of the final rule.

    List of Subjects in 48 CFR Parts 1816, 1832, 1842, and 1852

    Government procurement.

    Manuel Quinones, NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1816, 1832, 1842, and 1852 are amended as follows:

    1. The authority citation for parts 1816, 1832, and 1852 continues to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    PART 1816—TYPES OF CONTRACTS
    1816.307-70 [Amended]
    2. Amend section 1816.307-70 by removing and reserving paragraph (e). PART 1832—CONTRACT FINANCING 3. Add subpart 1832.9 to read as follows: Subpart 1832.9—Prompt Payment Sec. 1832.908 Contract clauses. 1832.908-70 Submission of Vouchers. Subpart 1832.9—Prompt Payment
    1832.908 Contract clauses.
    1832.908-70 Submission of Vouchers.

    Insert clause 1852.232-80, Submission of Vouchers for Payment, in all cost-reimbursement solicitations and contracts.

    PART 1842—CONTRACT ADMINISTRATION AND AUDIT SERVICES 4. The authority citation for part 1842 is revised to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Subpart 1842.71 [Removed and Reserved] 5. Remove and reserve subpart 1842.71. PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    1852.216-87 [Removed and Reserved]
    6. Remove and reserve section 1852.216-87. 7. Add section 1852.232-80 to read as follows:
    1852.232-80 Submission of Vouchers for Payment.

    As prescribed in 1832.908-70, insert the following clause:

    Submission of Vouchers for Payment (Sep 2016)

    (a) The designated payment office is the NASA Shared Services Center (NSSC) located at FMD Accounts Payable, Bldg. 1111, Jerry Hlass Road, Stennis Space Center, MS 39529.

    (b) Except for classified vouchers, the Contractor shall submit all vouchers electronically using the steps described at NSSC's Vendor Payment information Web site at: https://www.nssc.nasa.gov/vendorpayment. Please contact the NSSC Customer Contact Center at 1-877-NSSC123 (1-877-677-2123) with any additional questions or comments.

    (c) Payment requests. (1) The payment periods designated in the payment clause(s) contained in this contract will begin on the date a proper request for payment is received by the NSSC payment office specified in paragraphs (a) and (b) of this section. Vouchers shall be prepared in accordance with the guidance provided by the NSSC at the following Web site: https://answers.nssc.nasa.gov/app/answers/detail/a_id/6643.

    (2) Vouchers shall include the items delineated in FAR 32.905(b) supported by relevant back-up documentation. Back-up documentation shall include at a minimum, the following information:

    (i) Breakdown of billed labor costs and associated contractor generated supporting documentation for billed direct labor costs to include rates used and number of hours incurred.

    (ii) Breakdown of billed other direct costs (ODCs) and associated contractor generated supporting documentation for billed ODCs.

    (iii) Indirect rate(s) used to calculate the amount of billed indirect expenses.

    (d) Non-electronic payment. The Contractor may submit a voucher using other than the steps described at NSSC's Vendor Payment information through any of the means described at https://www.nssc.nasa.gov/vendorpayment, if any of the following conditions are met:

    (1) The Contracting Officer administering the contract for payment has determined, in writing, that electronic submission would be unduly burdensome to the Contractor. In such cases, the Contractor shall include a copy of the Contracting Officer's determination with each request for payment when the Government-wide commercial purchase card is used as the method of payment.

    (2) The contract includes provision allowing the contractor to submit vouchers using other than the steps prescribed at NSSC's Vendor Payment information Web site. In such instances, the Contractor agrees to submit non-electronic payment requests using the method or methods specified in Section G of the contract.

    (e) Improper vouchers. The NSSC Payment Office will notify the contractor of any apparent error, defect, or impropriety in a voucher within seven calendar days of receipt by the NSSC Payment Office. Inquiries regarding requests for payment should be directed to the NSSC as specified in paragraph (b) of this section.

    (f) Other payment clauses. In addition to the requirements of this clause, the Contractor shall meet the requirements of the appropriate payment clauses in this contract when submitting payment requests.

    (g) In the event that amounts are withheld from payment in accordance with provisions of this contract, a separate payment request for the amount withheld will be required before payment for that amount may be made.

    (End of clause)
    [FR Doc. 2016-22046 Filed 9-13-16; 8:45 am] BILLING CODE 7510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 151023986-6763-02] RIN 0648-XE284 Pacific Island Pelagic Fisheries; 2016 U.S. Territorial Longline Bigeye Tuna Catch Limits AGENCY:

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

    ACTION:

    Final specifications.

    SUMMARY:

    In this final rule, NMFS specifies a 2016 limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating territory (American Samoa, Guam, and the Northern Mariana Islands). NMFS will allow each territory to allocate up to 1,000 mt each year to U.S. longline fishing vessels in a valid specified fishing agreement. As an accountability measure, NMFS will monitor, attribute, and restrict (if necessary), catches of longline-caught bigeye tuna, including catches made under a specified fishing agreement. These catch limits and accountability measures support the long-term sustainability of fishery resources of the U.S. Pacific Islands and fisheries development in the U.S. territories.

    DATES:

    The final specifications are effective September 9, 2016, through December 31, 2016. The deadline to submit a specified fishing agreement pursuant to 50 CFR 665.819(b)(3) for review is October 11, 2016.

    ADDRESSES:

    Copies of the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (Pelagic FEP) are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel. 808-522-8220, fax 808-522-8226, or www.wpcouncil.org.

    NMFS prepared environmental analyses that describe the potential impacts on the human environment that would result from the action. Copies of the environmental analyses, which include a 2015 environmental assessment (EA), a 2016 supplemental EA (2016 SEA), and a finding of no significant impact, identified by NOAA-NMFS-2015-0140, are available from www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0140, or from Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.

    FOR FURTHER INFORMATION CONTACT:

    Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.

    SUPPLEMENTARY INFORMATION:

    NMFS is specifying a catch limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating territory in 2016. NMFS is also authorizing each U.S. Pacific territory to allocate up to 1,000 mt of its 2,000-mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Pelagic FEP. NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819—Territorial catch and fishing effort limits. When NMFS projects that a territorial catch or allocation limit will be reached, NMFS will, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (territorial catch limit), and/or vessels in a specified fishing agreement (allocation limit).

    You may find additional background information on this action in the preamble to the proposed specifications published on July 7, 2016 (81 FR 44249).

    Comments and Responses

    On July 7, 2016, NMFS published the proposed specifications and request for public comments (81 FR 44249); the comment period closed on July 22, 2016. NMFS received five comments on the proposed specifications and on a draft of the SEA dated June 22, 2016, with comments submitted by individuals, the fishing industry, and non-governmental organizations. NMFS considered public comments in finalizing the 2016 SEA and in making its decision on this action. NMFS responds below to comments on the proposed specifications and the July 22, 2016, draft of the SEA.

    Comments on the Proposed Specifications

    NMFS responds to comments on the proposed specifications, as follows:

    Comment 1: Several commenters expressed general support for the action and the thorough and objective assessment of the potential impacts of the action.

    Response: NMFS acknowledges the comments.

    Comment 2: One commenter noted the action supports opportunities that promote U.S. fishermen supplying seafood markets, and is consistent with Federal regulations implementing Amendment 7 to the Pelagic FEP and the recent decision of the United States District Court of Hawaii (Conservation Council for Hawaii v. NMFS, NO. CV 14-00528 LEK-RLP, 2015 WL 9459899 (D. Haw. 2015)).

    Response: NMFS agrees. In November of 2014, Plaintiffs Conservation Council of Hawaii, Turtle Island Restoration Network, and Center for Biological Diversity, filed a civil action in the U.S. District Court of Hawaii (CA 14-00528) seeking declaratory and injunctive relief to set aside NOAA's October 28, 2014, final rule implementing Amendment 7, and the 2014 bigeye tuna catch and allocation limit specifications (79 FR 64097, October 28, 2014). The final rule established the framework process (50 CFR 665.819) under which the Council may recommend, and NOAA may approve, longline limits for each U.S. Pacific territory. The rule also allows each territory to allocate a portion of the limit to qualifying pelagic permit-holders through specified fishing agreements, consistent with the conservation needs of the stock and applicable Western and Central Pacific Fisheries Commission (WCPFC) decisions. In December 2015, the U.S. District Court of Hawaii upheld the final rule implementing Amendment 7, finding that the final rule was consistent with WCPFC conservation and management decisions, and was not contrary to law.

    Consistent with Amendment 7, NMFS will establish a limit of 2,000 mt of bigeye tuna for each U.S. Pacific territory for calendar year 2016. NMFS will also allow each territory to allocate through specified fishing agreements up to 1,000 mt of its 2,000-mt bigeye tuna limit to U.S. fishing vessels permitted under the Pelagic FEP. As documented in the 2015 EA and the 2016 SEA, NMFS is satisfied that this action would not impede WCPFC conservation and management objectives to eliminate overfishing on bigeye tuna. We also anticipate that this action may provide some stability to bigeye tuna markets, some positive economic benefits for the fishery and associated businesses, and net benefits to the Nation.

    Comment 3: One commenter expressed concern that the proposed action could be detrimental to the Hawaiian bigeye tuna population because the amount of bigeye tuna removed from Hawaiian waters could potentially increase by 3,000 mt.

    Response: Based on the best scientific information available described in Section 3.3.1 of the 2015 EA, NMFS disagrees that this action will result in localized or regional depletion of tuna stocks. Hawaii does not have a distinct bigeye tuna population. Bigeye tuna is a highly migratory species and considered by stock assessment scientists as a single Pacific-wide population. However, the stock is assessed as two separate stocks for international management purposes, with a western and central Pacific Ocean (WCPO) stock managed by the WCPFC and an eastern Pacific Ocean (EPO) stock managed by the Inter-American Tropical Tuna Commission (IATTC).

    As described in the 2015 EA, the most recent 2014 WCPO bigeye assessment utilizes a spatially disaggregated MULTIFAN-CL model that separates the WCPO into nine regions. The Hawaiian Archipelago is located mostly in Region 2, with a small portion within Region 4. Regions 2 and 4 share longitudinal boundaries of 170° E. and 150° W., but are latitudinal separated at 20° N. The 2014 WCPO bigeye stock assessment showed that the regions with the highest impact to bigeye tuna in the WCPO were Regions 3 and 4—representing 88 percent of bigeye tuna fishing mortality. Regions 3 and 4 comprise the tropical Equatorial zone between 20° N. and 10° S., within which the area between 10° N. and 10° S. is distinguished as the core Equatorial zone for the tropical tuna longline and purse seine fisheries. The highest levels of purse seine and longline fishing mortality on bigeye tuna occur in this core Equatorial zone.

    The majority of fishing effort by the U.S. longline fishery operating out of Hawaii occurs north of 20° N. in Region 2, where fishing mortality for bigeye is much lower than in Regions 3 and 4. Moreover, 98 percent of bigeye tuna caught by this fishery occurs north of 10° N., which is an area outside of the core Equatorial zone. Region 2 also has the highest ratio of exploited spawning biomass to unexploited spawning biomass, meaning that it has the lowest level of depletion because of fishing pressure.

    Fishing by Hawaii longline vessels occurs principally in Regions 2 and 4, and the stochastic projections shown in Section 4 of the 2015 EA indicate that, compared to no action, the impact of transferring up to 3,000 mt of bigeye tuna from a U.S. territory to Hawaii longline vessels would result in a 2.5 percent change to the ratio of bigeye fishing mortality (F) to fishing mortality at MSY (FMSY). Specifically, the analysis in the 2015 EA predicts an end to overfishing of bigeye by 2032 (F2032/FMSY = 0.93) for the alternative under which NMFS would not allow any U.S. territory to allocate any tuna to Hawaii longline vessels. Assuming the maximum utilization of territorial bigeye tuna limits and associated allocation limits under this action, F2032/FMSY increases slightly to 1.007. This mortality rate is associated with a 55 percent probability of overfishing and is virtually indistinguishable from the overfishing threshold of F/FMSY >1.0. Under this action, median total biomass (B) would be B2032/BMSY = 1.510 indicating that biomass would be above the level of biomass that produces MSY, and is associated with a zero percent probability of overfishing. Taken together, the analysis indicates that the full utilization of territorial limits, including the transfer of up to 3,000 mt of bigeye tuna under specified fishing arrangements, would have a negligible effect on the overall stock status of bigeye tuna, and would not impede WCPFC conservation measures to eliminate bigeye overfishing in the WCPO.

    Comments on the Draft Supplemental Environmental Assessment

    NMFS responds to comments on the draft SEA dated June 22, 2016, as follows:

    Comment 1: Two commenters questioned whether the best scientific information available supports Senator Schatz's proposal to expand the Papahanaumokuakea Marine National Monument (PMNM). The commenters questioned whether the proposed expansion would positively benefit target and non-target fish stocks, promote productive fisheries outside the PMNM, and combat climate change. The commenters noted that the PMNM expansion is a foreseeable future action that is reasonably expected to occur, and requested that NMFS evaluate the potential direct and cumulative effects of the proposed expansion on Hawaii pelagic fisheries, and living marine resources, including coral reefs, bigeye tuna, other highly migratory fish stocks, sea turtles, sea birds, and marine mammals.

    Response: On August 26, 2016, shortly before publication of this final specification, President Barack Obama issued Presidential Proclamation 9478 (August 26, 2016, 81 FR 60225), expanding the PMNM to the full extent of the U.S. Exclusive Economic Zone around the Northwestern Hawaiian Islands west of 163° W. The Proclamation establishes the PMNM Expansion for the protection of the objects within its boundaries.

    That Presidential action is separate from and is not a part of the current action, which specifies a 2016 catch limit for longline-caught bigeye tuna for participating territories and allows each territory to allocate a portion of that annual catch to U.S. longline fishing vessels. The National Environmental Policy Act requires Federal agencies to consider an action's cumulative effects, together with past, present, and reasonably foreseeable Federal, state, and private actions. The commenters do not specify what impacts the Proclamation might have that they believe should be considered in a cumulative effects analysis for the 2016 bigeye tuna final specifications.

    The specification of territorial longline bigeye tuna catch and allocation limits is an action of limited duration that will conclude at the end of 2016. The Proclamation has just occurred, and thus there is no evident useful information about the protections it affords that is available to inform a cumulative effects analysis. Further, in light of the short-term nature of the current action, the prohibition on commercial fishing in the recent Proclamation is not likely to have a cumulative effect on the availability or quantity of tuna that provides the basis for the 2016 specifications. NMFS has added a new section to this effect in the 2016 SEA (Section 2.5.4, Papahanaumokuakea Marine National Monument Expansion).

    Comment 2: One commenter questioned the scientific basis for expanding the PMNM, and noted that if the proposal has been peer reviewed, NMFS should also be evaluating the effects of the Rose Atoll, Mariana Trench, and Pacific Remote Islands Marine National Monuments on tuna stocks and other highly migratory species.

    Response: Like the recent Proclamation expanding the PMNM, the Presidential Proclamations designating the Rose Atoll (74 FR 1577, January 12, 2009), Mariana Trench (74 FR 1557, January 12, 2009), and Pacific Remote Islands Monuments (74 FR 1565, January 12, 2009; 79 FR 58645, September 29, 2009), and implementing regulations (78 FR 32996, June 2, 2013) are prior Federal actions, and are not part of this action. Therefore, as explained in Section 3.0 (Cumulative Impacts) of the 2016 SEA, there is no new information on any other component of the environment that would affect the cumulative effects analysis contained in the 2015 EA.

    Classification

    The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of Pacific Island fishery resources, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule, and we do not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.

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

    Pursuant to the RFA and prior to July 1, 2016, NMFS developed a certification for this regulatory action using SBA size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial fishing businesses and were considered small under the SBA size standards and, thus, they all would continue to be considered small under the new standard. Accordingly, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

    This rule it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1) because it is a substantive rule that relieves a restriction. This rule allows all U.S. vessels identified in a valid specified fishing agreement to resume fishing in the WCPO after NMFS closed the longline fishery for bigeye tuna both there and in the EPO.

    NMFS closed the U.S. pelagic longline fishery for bigeye tuna in the WCPO, on July 22, 2016, because the fishery reached the 2016 catch limit (81 FR 45982, July 15, 2016). On July 25, 2016, NMFS also closed the U.S. pelagic longline fishery for bigeye tuna for vessels greater than 24 m in the EPO because the fishery reached the 2016 catch limit (81 FR 46614, July 18, 2016). This final rule would relieve the restriction of the fishery closure in the WCPO by allowing all U.S. vessels to fish for bigeye tuna in the WCPO under a valid specified fishing agreement with one or more U.S Pacific territory. This would alleviate some of the impacts to the U.S. pelagic longline fishery resulting from the two fishery closures, and may provide positive economic benefits for the fishery and associated businesses, and net benefits to the public and the Nation.

    This action is exempt from review under E.O. 12866 because it contains no implementing regulations.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 8, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-22111 Filed 9-9-16; 4:15 pm] BILLING CODE 3510-22-P
    81 178 Wednesday, September 14, 2016 Proposed Rules DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 19 CFR Part 111 [Docket No. USCBP-2016-0059] RIN 1651-AB07 Modernization of the Customs Brokers Examination AGENCY:

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

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document proposes to update the U.S. Customs and Border Protection (CBP) regulations concerning the customs broker's examination provisions. Specifically, this document proposes to transition to a computer automated customs broker examination, increase the examination fee to cover the increased cost of delivering the exam, and adjust the dates of the examination to account for the fiscal year transition period and payment schedule requirements.

    DATES:

    Comments must be received on or before November 14, 2016.

    ADDRESSES:

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

    • Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments via Docket No. USCBP-2016-0059.

    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 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, Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 325-0118.

    FOR FURTHER INFORMATION CONTACT:

    John Lugo, Broker Management Branch, Office of Trade, (202) 863-6015, [email protected]

    SUPPLEMENTARY INFORMATION: Public Participation

    Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed 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 regulatory change. Comments that will provide the most assistance to CBP will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information or authority that support such recommended change.

    Background

    Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides, among other things, that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of broker's licenses and permits, and provides for disciplinary action against brokers that have engaged in specific infractions. This section also provides that an examination may be conducted to assess an applicant's qualifications for a license.

    The regulations issued under the authority of section 641 are set forth in title 19 of the Code of Federal Regulations, part 111 (19 CFR part 111). Part 111 sets forth the regulations regarding, among other things, the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers. These regulations also include the qualifications required of applicants and the procedures for applying for licenses and permits, including examination procedures and requirements.

    In this rule, CBP proposes to modernize the customs broker examination provisions contained in 19 CFR part 111 by allowing for automation of the examination, by increasing the fee to cover the increased cost of delivering the exam, and by adjusting the dates of the examination to account for the fiscal year transition period and payment schedule requirements.

    Discussion of Proposed Amendments Subpart B, Procedure To Obtain License or Permit

    Section 111.11 (19 CFR 111.11) provides the basic requirements for individuals, partnerships, and associations or corporations to obtain a customs broker's license. An applicant for an individual broker's license must be a U.S. citizen, at least 21 years old, of good moral character, and must attain a passing grade on a written examination. (19 CFR 111.11(a).) Paragraph (a)(4) of section 111.11 currently refers to a “written” examination. To allow for greater flexibility in test administration and for the transition from a paper and pencil format to computer automated exams, CBP proposes to remove the word “written” before examination in paragraph (a)(4) (19 CFR 111.11(a)(4)). The automated examination will be held at private testing centers and administered by professional proctors. These spaces will each be equipped with computers programed to accommodate the examination while blocking web access. Examinees are only permitted access to those resources allowed to be brought into the examination as listed on cbp.gov. Examination automation presents many benefits for both the applicant as well as CBP. First, automation will provide faster notification of test scores to the examinee. In addition, CBP expects examination automation to help standardize the testing environment and equipment for all examinees across the country. For CBP, automation decreases the staff and administrative resources necessary to conduct the examination.

    Section 111.12 (19 CFR 111.12) sets forth the license application requirements. Paragraph (a) of section 111.12 currently includes two references to a “written” examination. CBP proposes to remove the word “written” before examination in both places that it appears in paragraph (a) for the reasons set forth above.

    Section 111.13 (19 CFR 111.13) provides details and procedures for the customs broker written examination. Reference to a “written” examination currently appears in the heading and throughout section 111.13. Again, CBP proposes to remove the word “written” in references to the examination throughout the section as well as in the section heading.

    In addition, paragraph (a) currently states that the examination is graded at CBP Headquarters. Currently, the Office of Personnel Management (OPM) administers the examination contract with the testing facilities. To allow for greater flexibility in grading the examination, including grading by OPM or an OPM contractor, CBP proposes to remove the language requiring that the examination will be graded at CBP Headquarters. Removing this restriction will also reduce the time required to grade the examination.

    Paragraph (b) of section 111.13 (19 CFR 111.13(b)) sets forth the basic requirements, date, and place of the examination. The regulations currently provide that examinations will be given on the first Monday in April and October. In the past few years, CBP has started the new fiscal year operating under a Continuing Resolution passed by the U.S. Congress. This fiscal uncertainty has created a logistical challenge in meeting the payment schedule required by the OPM. To allow more time between the start of the fiscal year and the October examination, CBP proposes to adjust the examination dates to the fourth Monday in April and October. In addition, while the current regulations set forth when the examination will be offered, CBP proposes to publish additional notice of each examination on its Web site to increase transparency and the availability of examination information. CBP has instituted an electronic registration process for the broker examination and proposes to amend the regulations to reflect this change in process.

    The current examination fee is $200. (19 CFR 111.13(b).) As part of the review of the customs brokers regulations, CBP conducted a fee study and determined that a fee of $390 is necessary to recover the costs associated with administering the customs broker license examination. A fee study documenting the proposed fee change, entitled “Customs Broker License Examination Fee Study,” has been included in the docket of this rulemaking (Docket No. USCBP-2016-0059). The examination fee has remained at $200 since 2000 and has not been adjusted to account for inflation. In addition, the cost to deliver the examination is expected to increase. CBP has relied upon port staff to administer the examination using mainly government facilities and a few hotel sites. With automated examinations, CBP will need to hire proctors and reserve testing centers. As a result, CBP proposes to increase the examination fee from $200 to $390.

    Paragraph (c) of section 111.13 (19 CFR 111.13(c)) provides for a special examination in the case that a partnership, association, or corporation loses the member or officer with the individual broker's license that is required by the regulations. Under the current regulation, the party seeking a special examination bears the cost of CBP's developing and administering the examination. Since the examination is offered twice each year, however, firms have a large pool of licensed brokers from which to find a replacement. To date, CBP has never used the special examination provision. Consequently, CBP has determined that the special examination provision is unnecessary and proposes to remove current paragraph (c) and redesignate the remaining paragraphs (d), (e), and (f) as (c), (d), and (e). A corresponding amendment is proposed to remove the sentence addressing failure to appear for a special examination in redesignated paragraph (c).

    Current paragraph (d) (19 CFR 111.11(d)) explains the procedure when an applicant fails to appear for an examination. As noted above, CBP proposes to redesignate paragraph (d) as paragraph (c). In addition, CBP proposes to amend the CBP contact who should receive notice by removing the reference to the port director and instead directing the applicant to the Broker Management Branch within the Office of Trade.

    Current paragraph (f) (19 CFR 111.11(f)) describes the procedure for appealing a failing grade on the examination. As noted above, CBP proposes to redesignate paragraph (f) as paragraph (e). In addition, CBP proposes to amend the CBP contact for appeals by removing the reference to Trade Policy and Programs and instead directing the applicant to the Broker Management Branch within the Office of Trade. Lastly, CBP proposes to update the cross reference to current paragraph (e) to correspond with the redesignated paragraph (d).

    Subpart E, Monetary Penalty and Payment of Fees

    As discussed above, CBP has conducted a fee study to review the broker examination fees. The fee study documenting the proposed fee changes, entitled “Customs Broker License Examination Fee Study,” has been included in the docket of this rulemaking (Docket No. USCBP-2016-0059). The current broker examination fee set forth in paragraph (a) of section 111.96 (19 CFR 111.96(a)) is $200. Based on the findings of the fee study, CBP proposes to increase the examination fee referred to in paragraph (a) from $200 to $390.

    In addition, paragraph (e) (19 CFR 111.96(e)) of section 111.96 describes the method of payment. CBP proposes a nomenclature update by replacing the phrase United States Customs Service with U.S. Customs and Border Protection. Lastly, to allow for greater flexibility in accepting payments, CBP proposes to add the language “or other CBP approved payment method” to the end of paragraph (e).

    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,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this regulation. CBP has prepared the following analysis to help inform stakeholders of potential impacts of this proposed rule.

    1. Purpose of the Rule

    Customs brokers are private individuals and/or business entities (partnerships, associations or corporations) that are regulated and empowered by CBP to assist importers and exporters in meeting federal requirements governing imports and exports. Customs brokers have an enormous responsibility to their clients and to CBP that requires them to properly prepare importation and exportation documentation, file these documents timely and accurately, classify and value goods properly, pay duties and fees, safeguard their clients' information, and protect their license from misuse.

    CBP currently licenses brokers who meet a certain set criteria. One criterion is that each prospective broker must first pass a broker license examination. CBP's current paper based examination method will soon no longer be available and so CBP is shifting to an all-electronic examination. The all-electronic examination has some benefits to both CBP and the trade, such as a faster processing time, which lets examinees know their results more quickly and efficiently, and a significant reduction in administrative duties for CBP employees. However, administering this new electronic examination is also more expensive. Additionally, the current $200 fee does not cover the costs of the current paper examination. CBP is therefore proposing to increase the examination fee from $200 to $390 in order to fully cover all of CBP's costs of administering the broker examination.

    CBP is also proposing to change the date of the semi-annual customs broker examination from the first Monday in October and April to the fourth Monday in October and April for easier administration.

    2. Background

    It is CBP's responsibility to ensure that only qualified individuals and business entities can perform customs business on another party's behalf. The first step in meeting the eligibility requirements for a customs broker license requires an individual to pass the customs broker license examination. Currently paper-based, the customs broker examination is an open-book examination consisting of 80 multiple-choice questions.

    An individual must meet the following criteria in order to be eligible to take the customs broker examination:

    • Be a U.S. citizen at least 18 years of age; 1

    1 Although U.S. citizens at least 18 years old may take the broker license exam, a U.S. citizen must be at least 21 years old to apply to become a licensed customs broker. An individual has three years, from the time s/he takes the customs broker exam, to apply to become a licensed customs broker.

    • Not be an employee of the U.S. federal government; and

    • Pay a $200 examination fee.

    The customs broker examination is offered semi-annually, in April and October, and an examinee has four and a half (4.5) hours to complete it. Based on prior year exams from 2004 to 2013, CBP estimates that there will be approximately 2,600 examinees per year, or 1,300 examinees per session. Currently the broker examination is given at 50 testing locations around the country. CBP anticipates that changing the examination format from paper-based to electronic would result in no change in the number of testing locations in the country; the only change would be the type of testing location. According to the Broker Management Branch, the examination is currently administered at hotels and ports throughout the country. In the future, the examination will instead be held at privately operated formal testing locations.

    Beginning in April 2017, the current paper testing option will no longer be available and the broker examination will be fully electronic. Despite the higher costs of an electronic exam, it has many favorable features which would benefit both CBP and the examinees, including shorter wait times for examinees to get their test results and a reduction in the time CBP staff spends on administrative matters related to the exam, such as fielding questions from examinees and mailing test result notices.

    3. Costs

    As discussed above, CBP currently charges a $200 fee for the customs broker license examination. This fee is used to offset the costs associated with providing the services necessary to operate the customs broker license examination. Based on a recently completed fee study entitled, “Customs Broker License Examination Fee Study,” CBP has determined that these fees are no longer sufficient to cover its costs.2 Currently, examinees go to either a port or to a rented event space in a hotel to take the paper examination with a 35-page test booklet and a scantron sheet, which must subsequently be collected and graded. The new all-electronic version of the examination will be administered entirely on a computer where the examinees answer the questions directly on the screen and the examination is graded automatically. As the electronic examination uses all private facilities with professional proctors, this automated method will be more expensive than the paper examination. Furthermore, the current fee is not enough to cover even the current costs of administering the examination. As stated above, the current $200 fee has not been changed since 2000. According to data provided by CBP's Broker Management Branch, administrative and testing costs have increased since the fee was last changed. This increase in administrative fees coupled with switching to an all-electronic exam, makes it necessary to increase the customs broker examination fee from $200 to $390 for CBP to recover all of its costs to administer the customs broker examination.

    2 The fee study is included in the docket of this rulemaking (Docket No. USCBP-2016-0059).

    CBP has determined that the fee of $390 is necessary to recover the costs associated with administering the customs broker license examination once the examination is made electronic. The customs broker examination is an established service provided by CBP that already requires a fee payment. Though the change to an electronic examination raises the costs of the examination and also has some benefits for the examinees, that change is happening independently of this rule. Absent this rule, CBP would be operating the examination at a loss and this fee is intended to offset that loss. As such, a change in the fee is not a net cost to society, but rather a transfer payment from test takers to the government. CBP does recognize, however, that the proposed fee change may have a distributional impact on prospective customs brokers. In order to inform stakeholders of all potential effects of the proposed rule, CBP has analyzed the distributional effects of the proposed rule in section “5. Distributional Impacts.”

    4. Benefits

    As discussed above, CBP is proposing to increase the customs broker license examination fee from $200 to $390. The broker examination fee was last changed in 2000 when it was reduced from $300 to the current fee of $200. The lower cost paper-based examination that is currently being administered is being replaced by an all-electronic examination in an ongoing effort to fully modernize the customs broker testing procedure. This proposed fee increase will allow CBP to fully recover all of its costs, including those to provide a fully electronic version of the customs broker examination beginning in April 2017. As discussed above, the fee increase is neither a cost nor a benefit to this rule since the broker examination fee is already an established fee. Thus, the proposed fee increase is considered a transfer payment. As stated above, in order to inform stakeholders of all potential effects of the proposed rule, CBP has analyzed the distributional effects of the proposed rule in section “5. Distributional Impacts.”

    In addition to proposing an increase in the examination fee, CBP is proposing to change the date the examination is given from the first Monday in October and April to the fourth Monday in October and April. Administering the examination on the first Monday in October is administratively difficult because it is too close to the conclusion of the Federal Government's fiscal year at the end of September. With this rule's changes, CBP and the examinees will benefit through greater predictability in years where federal budgets are uncertain.

    5. Distributional Impact

    Under the proposed rule, the customs broker license examination fee will increase from $200 to $390 in order for CBP to fully recover all of its costs to administer the broker examination. As noted above, these costs are increasing due to a shift in the administration of the examination that will go into effect beginning with the April 2017 examination.

    The proposed customs broker license examination fee will cost individuals an additional $190 when they register to take the customs broker license examination. As discussed above, CBP estimates that there will be 2,600 examinees per year (1,300 per session) who will take the customs broker license examination. Using this estimate and the additional cost that each examinee will incur, CBP estimates that the proposed fee increase will result in a transfer payment to the government of approximately $494,000 per year (2,600 examinees per year * $190 proposed fee increase = $494,000).

    Regulatory Flexibility Act

    This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA). A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).

    The proposed rule will apply to all prospective brokers who take the broker examination. The fee is paid by the individual taking the broker examination and individuals are not considered small entities under the Regulatory Flexibility Act. However, many of these individuals are sole proprietors or are reimbursed for this expense by their brokerage, so we consider the impact on these entities. As shown in Exhibit 1 below, approximately 96 percent of businesses entities in this North American Industry Classification (NAICS) code are small. As this rule would affect any prospective broker or his/her employer, regardless of its size, this rule has an impact on a substantial number of small entities.

    The direct impact of this proposed rule on each individual customs broker examinee, or his/her employer, is the fee increase of $190. To assess whether this is a significant impact, we examine the annual revenue for customs brokers. The U.S. Census Bureau categorizes customs brokers under the NAICS code 488510. In addition to customs brokers, this NAICS code also includes freight forwarders.3 The Small Business Administration (SBA) publishes size standards that determine the criteria for being considered a small entity for the purposes of this analysis. The SBA considers a business entity classified under the 488510 NAICS code as small if it has less than $15 million in annual receipts. We obtained the number of firms in each revenue category provided by the U.S. Census Bureau (see Exhibit 1 below). To estimate the average revenue of all firms under this NAICS code, we first assumed that each firm in each revenue category had receipts of the midpoint of the range. For example, we assumed that the 4,354 firms with annual receipts of between $100,000 and $499,000 had average receipts of $300,000. We then used the number of firms in each category to calculate the weighted average revenue across all small firms. Using this method, we estimate that the weighted average revenue for small businesses in this NAICS code is $1,496,197. The $190 increase in the broker examination fee, then, represents 0.01 percent of the weighted average annual revenue for brokers. We acknowledge that a company might pay for more than one examination annually which would increase the total cost to that company, but the impact would still be small. For example, even if a company paid for 10 exams annually, the total cost of $1,900 would represent 0.1 percent of the weighted average annual revenue for brokers. CBP does not consider 0.01 percent or even 0.1 percent of revenue to be a significant economic impact. Accordingly, CBP certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.

    3http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=488510&search=2012%20NAICS%20Search.

    Exhibit 1—Business Entity Data for NAICS Code 488510 Annual receipts
  • (Midpoint)
  • ($)
  • Number
  • of firms
  • Small
    <100,000 (50,000) 1,834 Yes. 100,000-499,999 (300,000) 4,354 Yes. 500,000-999,999 (750,000) 2,040 Yes. 1,000,000-2,499,999 (1,750,000) 2,300 Yes. 2,500,000-4,999,999 (3,750,000) 1,087 Yes. 5,000,000-7,499,999 (6,250,000) 427 Yes. 7,500,000-9,999,999 (8,750,000) 242 Yes. 10,000,000-14,999,999 (12,500,000) 233 Yes. >15,000,000 548 No. Total 13,065 96 Percent are Small (12,517/13,065). Source: U.S. Census Bureau.
    Signing Authority

    This document is being issued in accordance with 19 CFR 0.2(a), which provides that the authority of the Secretary of the Treasury with respect to CBP regulations that are not related to customs revenue functions was transferred to the Secretary of Homeland Security pursuant to section 403(l) of the Homeland Security Act of 2002. Accordingly, this proposed rule to amend such regulations may be signed by the Secretary of Homeland Security (or his delegate).

    List of Subjects in 19 CFR Part 111

    Administrative practice and procedure, Brokers, Customs duties and inspection, Penalties, Reporting and recordkeeping requirements.

    Proposed Amendments to the CBP Regulations

    For the reasons set forth in the preamble, part 111 of title 19 of the Code of Federal Regulations (19 CFR part 111) is proposed to be amended as set forth below.

    PART 111—CUSTOMS BROKERS 1. The authority citation for part 111 continues to read as follows: Authority:

    19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624; 1641.

    Section 111.3 also issued under 19 U.S.C. 1484, 1498; Section 111.96 also issued under 19 U.S.C. 58c, 31 U.S.C. 9701.

    § 111.11 [Amended]
    2. In § 111.11, paragraph (a)(4) is amended by removing the words “a written” and adding in its place the word “an”.
    § 111.12 [Amended]
    3. In § 111.12, paragraph (a) is amended by removing the word “written” from the two places that it appears in the fifth and sixth sentences. 2. In § 111.13: a. The section heading is revised; b. Paragraph (a) is amended by: 1. Removing the word “written” from the first sentence; 2. Removing the words “and graded at” from the second sentence and adding in their place the word “by”; and 3. Removing the phrase “Headquarters, Washington, DC” from the second sentence; c. Paragraph (b) is revised; d. Paragraph (c) is removed; e. Paragraph (d) is redesignated as paragraph (c) and revised; f. Paragraph (e) is redesignated as paragraph (d); and g. Paragraph (f) is redesignated as paragraph (e) and revised.

    The revisions read as follows:

    § 111.13 Examination for individual license.

    (b) Basic requirements, date, and place of examination. In order to be eligible to take the examination, an individual must on the date of examination be a citizen of the United States who has attained the age of 18 years and who is not an officer or employee of the United States Government. CBP will publish a notice announcing each examination on its Web site. Examinations will be given on the fourth Monday in April and October unless the regularly scheduled examination date conflicts with a national holiday, religious observance, or other foreseeable event and the agency publishes in the Federal Register an appropriate notice of a change in the examination date. An individual who intends to take the examination must complete the electronic application at least 30 calendar days prior to the scheduled examination date and must remit the $390 examination fee prescribed in § 111.96(a) at that time. CBP will give notice of the exact time and place for the examination.

    (c) Failure to appear for examination. If a prospective examinee advises the Office of Trade at the Headquarters of U.S. Customs and Border Protection, Attn: Broker Management Branch, electronically in a manner specified by CBP at least 2 working days prior to the date of a regularly scheduled examination that he will not appear for the examination, CBP will refund the $390 examination fee referred to in paragraph (b) of this section.

    (e) Appeal of failing grade on examination. If an examinee fails to attain a passing grade on the examination taken under this section, the examinee may challenge that result by filing a written appeal with the Office of Trade at the Headquarters of U.S. Customs and Border Protection, Attn: Broker Management Branch, within 60 calendar days after the date of the written notice provided for in paragraph (d) of this section. CBP will provide to the examinee written notice of the decision on the appeal. If the CBP decision on the appeal affirms the result of the examination, the examinee may request review of the decision on the appeal by writing to the Executive Assistant Commissioner, Office of Trade, U.S. Customs and Border Protection, within 60 calendar days after the date of the notice on that decision.

    § 111.96 [Amended]
    3. In § 111.96: a. Paragraph (a) is amended by removing the word “written” from the second sentence and removing the phrase “$200 examination fee” from the second sentence and adding in its place the phrase “$390 examination fee”; and b. Paragraph (e) is amended by removing the words “United States Customs Service” and adding in their place the words “U.S. Customs and Border Protection, or by another CBP-approved payment method”. Dated: September 8, 2016. Jeh Charles Johnson, Secretary.
    [FR Doc. 2016-21935 Filed 9-13-16; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Chapter I [Docket No. FHWA-2016-0002] RIN 2125-AF70 Tribal Transportation Self-Governance Program; Negotiated Rulemaking Second Meeting AGENCY:

    Federal Highway Administration, DOT.

    ACTION:

    Notice of meeting.

    SUMMARY:

    This document announces the second meeting of the Tribal Transportation Self-Governance Program (TTSGP) Negotiated Rulemaking Committee. This notice also announces additional alternate committee members.

    DATES:

    The second meeting of the TTSGP Negotiated Rulemaking Committee is scheduled for September 13-15, 2016, from 8:00 a.m. until 5:00 p.m.

    ADDRESSES:

    The second TTSGP Negotiated Rulemaking Committee meeting will be held at the Eastern Federal Lands Highway Division, Loudoun Tech Center, 21400 Ridgetop Circle, Sterling, VA 20166-6511.

    FOR FURTHER INFORMATION CONTACT:

    Robert W. Sparrow, Designated Federal Official, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-9483 or at [email protected] Vivian Philbin, Assistant Chief Counsel, 12300 West Dakota Avenue, Lakewood, CO 80228. Telephone: (720) 963-3445 or at [email protected] Additional information may be posted on the FHWA Tribal Transportation Program Web site at https://flh.fhwa.dot.gov/programs/ttp/ as it comes available.

    SUPPLEMENTARY INFORMATION: Background

    As required by Section 1121 of the Fixing America's Surface Transportation (FAST) Act, the Secretary shall, pursuant to a negotiated rulemaking process, develop a Notice of Proposed Rulemaking (NPRM) that contains the regulations required to carry the TTSGP. Section 1121 also requires that in establishing this committee, the Secretary will (1) apply the procedures of negotiated rulemaking under subchapter III of chapter 5 of title 5 (the Negotiated Rulemaking Act) in a manner that reflects the unique government-to-government relationship between the Indian tribes and the United States and (2) select the tribal representatives for the committee from among elected officials of tribal governments (or their designated employees with authority to act on their behalf), acting in their official capacities.

    On July 27, 2016, at 81 FR 49193, FHWA published its list of the TTSGP Negotiated Rulemaking Committee. Since multiple submissions were not received from Tribes within the Bureau of Indian Affairs' Midwest or Rocky Mountain Regions, an alternate for those regions were not originally named. Since that time through the work of the primary committee members and others, additional submittals have been submitted. As a result of this effort, the following have been named as Alternate Tribal Representatives:

    • MIDWEST REGION—Dean Branchaud, Executive Director of Tribal Engineering, Red Lake Band of Chippewa Indians, Red Lake, MN.

    • ROCKY MOUNTAIN REGION—Connie Thompson, Transportation Planner, Fort Peck Assiniboine & Sioux Tribes, Poplar, MT.

    Additional representatives or changes in the status of existing representatives may be forthcoming in future Federal Register Notices. Meeting Participation

    The meeting will be open to the public. Time has been set aside during each day of the meeting for members of the public to contribute to the discussion and provide oral comments.

    Submitting Written Comments

    Members of the public may submit written comments on the topics to be considered during the meeting by September 9, 2016, to Federal Docket Management System (FDMS) Docket Number FHWA-2016-0002. If you submit a comment, please include the docket number for this notice (FHWA-2016-0002). You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. The FHWA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FHWA can contact you if there are questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov, put the docket number, FHWA-2016-0002, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing.

    Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FHWA-2016-0002, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

    Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. The 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.

    Future Committee Meetings and Rulemaking Calendar

    Decisions with respect to future meetings will be made at the second meeting and from time to time thereafter. Notices of all future meetings will be shown on the FHWA TTP Web site at https://flh.fhwa.dot.gov/programs/ttp/ at least 15 calendar days prior to each meeting.

    Issued on: September 7, 2016. Gregory G. Nadeau, Administrator, Federal Highway Administration.
    [FR Doc. 2016-22128 Filed 9-9-16; 4:15 pm] BILLING CODE 4910-22-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 301 [REG-109086-15] RIN 1545-BN50 Premium Tax Credit NPRM VI; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Correction to a notice of proposed rulemaking.

    SUMMARY:

    This document contains corrections to a notice of proposed rulemaking (REG-109086-15) published in the Federal Register on Friday, July 8, 2015 (81 FR 44557). The proposed regulations related to the health insurance premium tax credit (premium tax credit) and the individual shared responsibility provision. These proposed regulations affect individuals who enroll in qualified health plans through Health Insurance Exchanges (Exchanges, also called Marketplaces) and claim the premium tax credit, and Exchanges that make qualified health plan available to individuals and employers.

    DATES:

    Written or electronic comments and requests for a public hearing that were being accepted by September 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Shareen Pflanz, (202) 317-4727; concerning the submission of comments and/or request for a public hearing, Oluwafunmilayo Taylor (202) 317-6901 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Background

    The notice of proposed rulemaking (REG-109086-15) that is the subject of this correction is under section 36B of the Internal Revenue Code.

    Need for Correction

    As published, the notice of proposed rulemaking (REG-109086-15) contains errors that are misleading and are in need of clarification.

    Correction of Publication

    Accordingly, the notice of proposed rulemaking (REG-109086-15), that are subject to FR Doc. 2016-15940, are corrected as follows:

    1. On page 44566, in the preamble, second column, the eighth to the tenth line from the top of the column, the language “dental benefits is added to the premium allocable to pediatric dental benefits for the lowest cost stand-alone dental plan” is corrected to read “dental benefits is added to the lowest-cost portion of the premium for a stand-alone dental plan that is allocable to pediatric dental benefits”. 2. On page 44566, in the preamble, second column, fourteenth to the sixteenth line from the top of column, the language “added to the premium allocable to the pediatric dental benefits for the second lowest-cost stand-alone dental plan” is corrected to read “added to the second-lowest-cost portion of the premium for a stand-alone dental plan that is allocable to pediatric dental benefits”.
    § 1.36B-0 [Corrected]
    3. On page 44569, first column, the entry for (f)(9), the language “(9) Effective date.” is corrected to read “(9) Examples.”. 4. On page 44569, first column, the entry (f)(10) is removed. 5. In § 1.36B-3 entries “(m) [Reserved].” and “(n) Effective/applicability date.” are added.
    § 1.36B-2 [Corrected]
    6. On page 44571, third column, the second line of paragraph (e)(1), the language “Except as provided in paragraph (f)(2) of” is corrected to read “Except as provided in paragraph (e)(2) of”.
    § 1.36B-3 [Corrected]
    7. On page 44574, third column, the second line of paragraph (n)(1), the language “Except as provided in paragraph (o)(2)” is corrected to read “Except as provided in paragraph (n)(2)”. 8. On page 44574, third column, paragraph (n)(2) of § 1.36B-3 is corrected to read as follows:

    (n) * * *

    (2) Paragraphs (c)(4), (d)(1) and (2) apply to taxable years beginning after December 31, 2016. Paragraph (f) of this section applies to taxable years beginning after December 31, 2018. Paragraphs (d)(1) and (2) of § 1.36B-3 as contained in 26 CFR part I edition revised as of April 1, 2016, apply to taxable years ending after December 31, 2013, and beginning before January 1, 2017. Paragraph (f) of § 1.36B-3 as contained in 26 CFR part I edition revised as of April 1, 2016, applies to taxable years ending after December 31, 2013, and beginning before January 1, 2019.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration).
    [FR Doc. 2016-22067 Filed 9-13-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF JUSTICE 28 CFR Parts 0 and 44 [CRT Docket No. 130] RIN 1190-AA71 Revision of Standards and Procedures for the Enforcement of Section 274B of the Immigration and Nationality Act AGENCY:

    Department of Justice.

    ACTION:

    Notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    On August 15, 2016, the Department of Justice (Department) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing to revise regulations implementing section 274B of the Immigration and Nationality Act, concerning unfair immigration-related employment practices. The comment period for the NPRM is scheduled to close on September 14, 2016. The Department is extending the comment period by 30 days until October 14, 2016, in order to provide additional time for the public to prepare comments.

    DATES:

    The comment period for the NPRM published on August 15, 2016 (81 FR 53965), is extended. All comments must be received by October 14, 2016. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of the day.

    ADDRESSES:

    You may submit written comments, identified by Docket No. CRT 130, by ONE of the following methods:

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

    Mail: 950 Pennsylvania Avenue NW.—NYA, Suite 9000, Washington, DC 20530.

    Hand Delivery/Courier: 1425 New York Avenue, Suite 9000, Washington, DC 20005.

    Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. For additional details on submitting comments, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or 1-800 237-2515 (TTY).

    SUPPLEMENTARY INFORMATION:

    The Department of Justice (Department) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on August 15, 2016, proposing to revise its regulations implementing section 274B of the Immigration and Nationality Act (INA), concerning unfair immigration-related employment practices. 81 FR 53965(August 15, 2016). The NPRM proposed to conform the Department's regulations to the statutory text as amended, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination jurisprudence, reflect changes in existing practices (e.g., electronic filing of charges), reflect the new name of the office within the Department charged with enforcing this statute, and replace outdated references. The Department received several comments requesting that the 30-day public comment period be extended, including a request to extend the comment period by an additional 60 days. The requests indicated that more time was needed to provide meaningful, comprehensive responses to the NPRM.

    Rather than granting the requested 60-day extension, the Department has decided to grant a 30-day extension of the comment period. Accordingly, the comment period will now close on October 14, 2016. The Department believes that this additional 30 days will provide the public with a sufficient opportunity to provide comments on this NPRM. Given the importance of ensuring that its regulations conform to section 274B of the INA, the Department seeks to continue moving this rulemaking forward. Comments on the NPRM should be provided by October 14, 2016, via the methods described above.

    Dated: September 7, 2016. Vanita Gupta, Principal Deputy Assistant Attorney General.
    [FR Doc. 2016-21937 Filed 9-13-16; 8:45 am] BILLING CODE 4410-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2016-0441; A-1-FRL-9952-10-Region I] Air Plan Approval; VT; Prevention of Significant Deterioration, PM2.5 AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Vermont. The revision sets the amount of PM2.5 increment sources are permitted to consume when obtaining a prevention of significant deterioration (PSD) preconstruction permit and requires PM2.5 emission offsets under certain circumstances. This action is being taken in accordance with the Clean Air Act.

    DATES:

    Written comments must be received on or before October 14, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2016-0441 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:

    Ida E. McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, (OEP05-2), Boston, MA 02109-3912, phone number (617) 918-1653, fax number (617) 918-0653, email [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules Section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    For additional information, see the direct final rule which is located in the Rules Section of this Federal Register.

    Dated: August 8, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2016-21880 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 97 [FRL-9952-26-OAR] Allocations of Cross-State Air Pollution Rule Allowances From New Unit Set-Asides for 2016 Control Periods AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of data availability (NODA).

    SUMMARY:

    The Environmental Protection Agency (EPA) is providing notice of the availability of preliminary lists of units eligible for allocations of emission allowances under the Cross-State Air Pollution Rule (CSAPR). Under the CSAPR federal implementation plans (FIPs), portions of each covered state's annual emissions budgets for each of the four CSAPR emissions trading programs are reserved for allocation to electricity generating units that commenced commercial operation on or after January 1, 2010 (new units) and certain other units not otherwise obtaining allowance allocations under the FIPs. The quantities of allowances allocated to eligible units from each new unit set-aside (NUSA) under the FIPs are calculated in an annual one- or two-round allocation process. EPA previously completed the first round of NUSA allowance allocations for the 2016 control periods for all four CSAPR trading programs and is now making available preliminary lists of units eligible for allocations in the second round of the NUSA allocation process for the CSAPR NOX Ozone Season Trading Program. EPA has posted a spreadsheet containing the preliminary lists on EPA's Web site. EPA will consider timely objections to the lists of eligible units contained in the spreadsheet and will promulgate a notice responding to any such objections no later than November 15, 2016, the deadline for recording the second-round allocations of CSAPR NOX Ozone Season allowances in sources' Allowance Management System accounts. This notice may concern CSAPR-affected units in the following states: Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, West Virginia, and Wisconsin.

    DATES:

    Objections to the information referenced in this notice must be received on or before October 14, 2016.

    ADDRESSES:

    Submit your objections via email to [email protected] Include “2016 NUSA allocations” in the email subject line and include your name, title, affiliation, address, phone number, and email address in the body of the email.

    FOR FURTHER INFORMATION CONTACT:

    Questions concerning this action should be addressed to Robert Miller at (202) 343-9077 or [email protected] or Kenon Smith at (202) 343-9164 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the CSAPR FIPs, the mechanisms by which initial allocations of emission allowances are determined differ for “existing” and “new” units. For “existing” units—that is, units commencing commercial operation before January 1, 2010—the specific amounts of CSAPR FIP allowance allocations for all control periods have been established through rulemaking. EPA has announced the availability of spreadsheets showing the CSAPR FIP allowance allocations to existing units in previous notices.1

    1 The latest spreadsheet of CSAPR FIP allowance allocations to existing units, updated in 2014 to reflect changes to CSAPR's implementation schedule but with allocation amounts unchanged since June 2012, is available at http://www.epa.gov/crossstaterule/actions.html. See Availability of Data on Allocations of Cross-State Air Pollution Rule Allowances to Existing Electricity Generating Units, 79 FR 71674 (December 3, 2014).

    “New” units—that is, units commencing commercial operation on or after January 1, 2010—as well as certain older units that would not otherwise obtain FIP allowance allocations do not have pre-established allowance allocations. Instead, the CSAPR FIPs reserve a portion of each state's total annual emissions budget for each CSAPR emissions trading program as a new unit set-aside (NUSA) 2 and establish an annual process for allocating NUSA allowances to eligible units. States with Indian country within their borders have separate Indian country NUSAs. The annual process for allocating allowances from the NUSAs and Indian country NUSAs to eligible units is set forth in the CSAPR regulations at 40 CFR 97.411(b) and 97.412 (NOX Annual Trading Program), 97.511(b) and 97.512 (NOX Ozone Season Trading Program), 97.611(b) and 97.612 (SO2 Group 1 Trading Program), and 97.711(b) and 97.712 (SO2 Group 2 Trading Program). Each NUSA allowance allocation process involves up to two rounds of allocations to new units followed by the allocation to existing units of any allowances not allocated to new units. EPA provides public notice at certain points in the process.

    2 The NUSA amounts range from two percent to eight percent of the respective state budgets. The variation in percentages reflects differences among states in the quantities of emission allowances projected to be required by known new units at the time the budgets were set or amended.

    EPA has already completed the first round of allocations of 2016 NUSA allowances for all four CSAPR trading programs, as announced in notices previously published in the Federal Register.3 The first-round NUSA allocation process was discussed in those previous notices.

    3 81 FR 33636 (May 27, 2016); 81 FR 50630 (August 2, 2016).

    In the case of second-round allocations of NUSA allowances, the annual allocations for the CSAPR NOX Ozone Season Trading Program occur before the annual allocations for the other three CSAPR trading programs because of differences in the emissions reporting and compliance deadlines for the various programs. This notice concerns the second round of NUSA allowance allocations for the CSAPR NOx Ozone Season Trading Program for the 2016 control period.4

    4 At this time, EPA is not aware of any unit eligible for a second-round allocation from any Indian country NUSA.

    The units eligible to receive second-round NUSA allocations for the CSAPR NOX Ozone Season Trading Program are defined in §§ 97.511(a)(1)(iii) and 97.512(a)(9)(i). Generally, eligible units include any CSAPR-affected unit that commenced commercial operation between May 1 of the year before the control period in question and August 31 of the year of the control period in question. In the case of the 2016 control period, an eligible unit therefore must have commenced commercial operation between May 1, 2015 and August 31, 2016 (inclusive).

    The total quantity of allowances to be allocated through the 2016 NUSA allowance allocation process for each state and emissions trading program—in the two rounds of the allocation process combined—is generally the state's 2016 emissions budget less the sum of (1) the total of the 2016 CSAPR FIP allowance allocations to existing units and (2) the amount of the 2016 Indian country NUSA, if any.5 The amounts of CSAPR NOX Ozone Season NUSA allowances may be increased in certain circumstances as set forth in § 97.512(a)(2).

    5 The quantities of allowances to be allocated through the NUSA allowance allocation process may differ slightly from the NUSA amounts set forth in §§ 97.410(a), 97.510(a), 97.610(a), and 97.710(a) because of rounding in the spreadsheet of CSAPR FIP allowance allocations to existing units.

    Second-round NUSA allocations for a given state, trading program, and control period are made only if the NUSA contains allowances after completion of the first-round allocations.

    The amounts of second-round CSAPR NOX Ozone Season allowance allocations to eligible new units from each NUSA are calculated according to the procedures set forth in § 97.512(a)(9), (10) and (12). Generally, the procedures call for each eligible unit to receive a second-round 2016 NUSA allocation equal to the positive difference, if any, between its emissions during the 2016 NOX ozone season (i.e., May 1, 2016 through September 30, 2016) as reported under 40 CFR part 75 and any first-round allocation the unit received, unless the total of such allocations to all eligible units would exceed the amount of allowances in the NUSA, in which case the allocations are reduced on a pro-rata basis.

    Any allowances remaining in the CSAPR NOX Ozone Season NUSA for a given state and control period after the second round of NUSA allocations to new units will be allocated to the existing units in the state according to the procedures set forth in § 97.512(a)(10) and (12).

    EPA notes that an allocation or lack of allocation of allowances to a given EGU does not constitute a determination that CSAPR does or does not apply to the EGU. EPA also notes that allocations are subject to potential correction if a unit to which NUSA allowances have been allocated for a given control period is not actually an affected unit as of the start of that control period.6

    6See 40 CFR 97.511(c).

    The preliminary lists of units eligible for second-round 2016 NUSA allocations of CSAPR NOX Ozone Season allowances are set forth in an Excel spreadsheet titled “CSAPR_NUSA_2016_NOx_OS_2nd_Round_Prelim_Data” available on EPA's Web site at http://www.epa.gov/crossstaterule/actions.html. The spreadsheet contains a separate worksheet for each state covered by that program showing each unit preliminarily identified as eligible for a second-round NUSA allocation.

    Each state worksheet also contains a summary showing (1) the quantity of allowances initially available in that state's 2016 NUSA, (2) the sum of the 2016 NUSA allowance allocations that were made in the first-round to new units in that state (if any), and (3) the quantity of allowances in the 2016 NUSA available for distribution in second-round allocations to new units (or ultimately for allocation to existing units).

    Objections should be strictly limited to whether EPA has correctly identified the new units eligible for second-round 2016 NUSA allocations of CSAPR NOX Ozone Season allowances according to the criteria described above and should be emailed to the address identified in ADDRESSES. Objections must include: (1) Precise identification of the specific data the commenter believes are inaccurate, (2) new proposed data upon which the commenter believes EPA should rely instead, and (3) the reasons why EPA should rely on the commenter's proposed data and not the data referenced in this notice.

    Authority:

    40 CFR 97.511(b).

    Dated: September 7, 2016. Reid P. Harvey, Director, Clean Air Markets Division, Office of Atmospheric Programs, Office of Air and Radiation.
    [FR Doc. 2016-22090 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2015-0392; FRL-9952-39-OW] RIN 2040-AF61 Water Quality Standards; Establishment of Revised Numeric Criteria for Selenium for the San Francisco Bay and Delta, State of California; Extension of Public Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; extension of comment period.

    SUMMARY:

    The Environmental Protection Agency (EPA) is extending the comment period for the proposed rule, “Water Quality Standards; Establishment of Revised Numeric Criteria for Selenium for the San Francisco Bay and Delta, State of California.” In response to stakeholder requests, EPA is extending the comment period for an additional 45 days, from September 13, 2016, to October 28, 2016.

    DATES:

    The comment period for the proposed rule that published on July 15, 2016 (81 FR 46030) has been extended. Comments must be received on or before October 28, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-0392, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. 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. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Julianne McLaughlin, Office of Water, Standards and Health Protection Division (4305T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566-2542; email address: [email protected]; or Diane E. Fleck, P.E., Esq., Water Division (WTR-2-1), U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street, San Francisco, CA 94105; telephone number (415) 972-3527; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 15, 2016, EPA published the proposed rule, “Water Quality Standards; Establishment of Revised Numeric Criteria for Selenium for the San Francisco Bay and Delta, State of California” in the Federal Register (81 FR 46030). EPA proposes to revise the current federal Clean Water Act selenium water quality criteria applicable to the San Francisco Bay and Delta to ensure that the criteria are set at levels that protect aquatic life and aquatic-dependent wildlife, including federally listed threatened and endangered species.

    The original deadline to submit comments on the proposed rule was September 13, 2016. This action extends the comment period for 45 days. Written comments must now be received on or before October 28, 2016.

    For more information on this proposed rule, please visit https://epa.gov/wqs-tech/water-quality-standards-establishment-revised-numeric-criteria-selenium-san-francisco-bay.

    Dated: September 7, 2016. Michael H. Shapiro, Deputy Assistant Administrator, Office of Water.
    [FR Doc. 2016-22087 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 49 [FAR Case 2015-039; Docket No. 2015-0039, Sequence No. 1] RIN 9000-AN26 Federal Acquisition Regulation: Audit of Settlement Proposals AGENCY:

    Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to $750,000.

    DATES:

    Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before November 14, 2016 to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments in response to FAR case 2015-039 by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2015-039”. Select the link “Comment Now” that corresponds with “FAR Case 2015-039.” Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2015-039” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405.

    Instructions: Please submit comments only and cite FAR Case 2015-039, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).
    FOR FURTHER INFORMATION CONTACT:

    Ms. Kathlyn Hopkins, Procurement Analyst, at 202-969-7226 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAR Case 2015-039.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DOD, GSA, and NASA are proposing to amend FAR 49.107 to increase the dollar threshold for the audit of prime contract settlement proposals and subcontract settlements, submitted in the event of contract termination. The threshold is increased from $100,000 to align with the threshold in FAR 15.403-4(a)(1) for obtaining certified cost or pricing data, which is currently $750,000. Other than the dollar amount, there will be no link between the requirements for certified cost or pricing data and the audit threshold for termination settlement proposals.

    The proposed amendment will help alleviate contract close-out backlogs and enable contracting officers to more quickly deobligate excess funds from terminated contracts.

    Under FAR 49.001, a “settlement proposal” is a proposal for effecting settlement of a contract terminated in whole or in part, submitted by a contractor or subcontractor in the form, and supported by the data, required by FAR part 49. Termination clauses and other contract clauses authorize contracting officers to terminate contracts for convenience or for default, and to enter into settlement agreements.

    II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. because the rule raises the threshold for audit requirements, thus reducing burdens on all types of businesses. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and it is summarized as follows:

    Of all contracts awarded to small businesses in a typical year, the number terminated and subject to FAR part 49 procedures is less than one-fifth of one percent. Moreover, since the rule raises the audit threshold, even fewer small businesses will be subject to audits of their termination settlement proposals.

    The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

    DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the proposed rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-039), in correspondence.

    IV. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 49

    Government procurement.

    Dated: September 9, 2016. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part 49 as set forth below:

    PART 49—TERMINATION OF CONTRACTS 1. The authority citation for 48 CFR part 49 continues to read as follows: Authority:

    40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

    2. Amend section 16.505 by revising paragraphs (a) and (b) to read as follows:
    49.107 Audit of prime contract settlement proposals and subcontract settlements.

    (a) The TCO shall refer each prime contractor settlement proposal valued at or above the threshold for obtaining certified cost or pricing data set forth in FAR 15.403-4(a)(1) to the appropriate audit agency for review and recommendations. The TCO may submit settlement proposals of less than the threshold for obtaining certified cost or pricing data to the audit agency. Referrals shall indicate any specific information or data that the TCO considers relevant and shall include facts and circumstances that will assist the audit agency in performing its function. The audit agency shall develop requested information and may make any further accounting reviews it considers appropriate. After its review, the audit agency shall submit written comments and recommendations to the TCO. When a formal examination of settlement proposals valued under the threshold for obtaining certified cost or pricing data is not warranted, the TCO will perform or have performed a desk review and include a written summary of the review in the termination case file.

    (b) The TCO shall refer subcontract settlements received for approval or ratification to the appropriate audit agency for review and recommendations when:

    (1) The amount exceeds the threshold for obtaining certified cost or pricing data; or

    (2) The TCO determines that a complete or partial accounting review is advisable. The audit agency shall submit written comments and recommendations to the TCO. The review by the audit agency does not relieve the prime contractor or higher tier subcontractor of the responsibility for performing an accounting review.

    [FR Doc. 2016-22070 Filed 9-13-16; 8:45 am] BILLING CODE 6820-EP-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [4500030115] Endangered and Threatened Wildlife and Plants; 90-Day Findings on 10 Petitions AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of petition findings and initiation of status reviews.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce 90-day findings on 10 petitions to list, reclassify, or delist fish, wildlife, or plants under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that six petitions do not present substantial scientific or commercial information indicating that the petitioned actions may be warranted, and we are not initiating status reviews in response to these petitions. We refer to these as “not-substantial” petition findings. We also find that four petitions present substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, with the publication of this document, we announce that we plan to initiate a review of the status of these species to determine if the petitioned actions are warranted. To ensure that these status reviews are comprehensive, we are requesting scientific and commercial data and other information regarding these species. Based on the status reviews, we will issue 12-month findings on the petitions, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

    DATES:

    When we conduct status reviews, we will consider all information that we have received. To ensure that we will have adequate time to consider submitted information during the status reviews, we request that we receive information no later than November 14, 2016. For information submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below), this would mean submitting the information electronically by 11:59 p.m. Eastern Time on that date.

    ADDRESSES:

    Not-substantial petition findings: The not-substantial petition findings announced in this document are available on http://www.regulations.gov under the appropriate docket number (see Table 2, below), or on the Service's Web site at http://ecos.fws.gov. Supporting information in preparing these findings is available for public inspection, by appointment, during normal business hours by contacting the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT. If you have new information concerning the status of, or threats to, any of these species or their habitats, please submit that information to the person listed under FOR FURTHER INFORMATION CONTACT.

    Status reviews: You may submit information on species for which a status review is being initiated by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate docket number (see Table 1, below). You may submit information by clicking on “Comment Now!” If your information will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our information review procedures. If you attach your information as a separate document, our preferred file format is Microsoft Word. If you attach multiple comments (such as form letters), our preferred format is a spreadsheet in Microsoft Excel.

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: [Insert appropriate docket number; see Table 1, below]; U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    We request that you send information only by the methods described above. We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Request for Information for Status Reviews, below, for more details).

    Table 1—List of “Substantial” Findings for Which a Status Review Is Being Initiated Common name Docket No. URL to Docket in Regulations.gov Florida scrub lizard FWS-R4-ES-2015-0087 https://www.regulations.gov/docket?D=FWS-R4-ES-2015-0087. Joshua tree FWS-R8-ES-2016-0088 https://www.regulations.gov/docket?D=FWS-R8-ES-2016-0088. Lassics lupine FWS-R8-ES-2016-0089 https://www.regulations.gov/docket?D=FWS-R8-ES-2016-0089. Lesser Virgin Islands skink FWS-R4-ES-2015-0098 https://www.regulations.gov/docket?D=FWS-R4-ES-2015-0098. Table 2—List of “Not Substantial” Findings Common name Docket No. URL to Docket in Regulations.gov Fourche Mountain salamander FWS-R4-ES-2016-0096 https://www.regulations.gov/docket?D=FWS-R4-ES-2016-0096. American Pika FWS-R6-ES-2016-0091 https://www.regulations.gov/docket?D=FWS-R6-ES-2016-0091. Ricord's rock iguana FWS-HQ-ES-2016-0092 https://www.regulations.gov/docket?D=FWS-HQ-ES-2016-0092. Spectacled eider (delist) FWS-R7-ES-2016-0041 https://www.regulations.gov/docket?D=FWS-R7-ES-2016-0041. Steller's eider (Alaska population) (delist) FWS-R7-ES-2016-0093 https://www.regulations.gov/docket?D=FWS-R7-ES-2016-0093. Wyoming pocket gopher FWS-R6-ES-2016-0094 https://www.regulations.gov/docket?D=FWS-R6-ES-2016-0094. FOR FURTHER INFORMATION CONTACT:

    Common name Contact person Florida scrub lizard Andreas Moshogianis, 404-679-7119; [email protected]. Fourche Mountain salamander Melvin Tobin, 501-513-4473; [email protected]. Joshua tree Mendel Stewart, 760-431-9440; [email protected]. Lassics lupine Bruce Bingham, 707-822-7201; [email protected]. Lesser Virgin Islands skink Andreas Moshogianis, 404-679-7119; [email protected]. American Pika Justin Shoemaker, 309-757-5800; [email protected]. Ricords rock iguana Emily Weller, 703-358-2171; [email protected]. Spectacled eider Drew Crane, 907-786-3323; [email protected]. Steller's eider (Alaska population) Drew Crane, 907-786-3323; [email protected]. Wyoming pocket gopher Justin Shoemaker, 309-757-5800; [email protected].

    If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Request for Information for Status Reviews

    When we make a finding that a petition presents substantial information indicating that listing, reclassifying, or delisting a species may be warranted, we are required to review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on these species from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:

    (1) The species' biology, range, and population trends, including:

    (a) Habitat requirements;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns; and

    (d) Historical and current population levels, and current and projected trends.

    (2) The five factors that are the basis for making a listing, reclassifying, or delisting determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), including past and ongoing conservation measures that could decrease the extent to which one or more of the factors affect the species, its habitat, or both. The five factors are:

    (a) The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A);

    (b) Overutilization for commercial, recreational, scientific, or educational purposes (Factor B);

    (c) Disease or predation (Factor C);

    (d) The inadequacy of existing regulatory mechanisms (Factor D); or

    (e) Other natural or manmade factors affecting its continued existence (Factor E).

    (3) The potential effects of climate change on the species and its habitat, and the extent to which it affects the habitat or range of the species.

    If, after the status review, we determine that listing is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) for domestic (U.S.) species under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information for the species listed above in Table 1 (to be submitted as provided for in ADDRESSES) on:

    (1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range occupied by the species;

    (2) Where these features are currently found;

    (3) Whether any of these features may require special management considerations or protection;

    (4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and

    (5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat falls within the definition of “critical habitat” at section 3(5) of the Act.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    Submissions merely stating support for or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your information concerning these status reviews by one of the methods listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.

    Our regulations in the Code of Federal Regulations (CFR) establish that the standard for substantial scientific or commercial information with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that a petition presents substantial scientific or commercial information, we are required to promptly commence a review of the status of the species, and we will subsequently summarize the status review in our 12-month finding.

    Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. Under Sections 4(a), 3(6), and 3(20), a species qualifies as an “endangered species” if it is in danger of extinction throughout all or a significant portion of its range because of one or more of the five factors described in section 4(a)(1) of the Act (see Request for Information for Status Reviews, above); a species qualifies as a “threatened species” if it is likely to become an “endangered species” within the foreseeable future throughout all or a significant portion of its range because of one or more of those five factors.

    In considering whether conditions described within one or more of the factors might constitute threats to a particular species, we must look beyond the exposure of the species to those conditions to evaluate whether the species may respond to the conditions in a way that causes actual impacts to the species. If there is exposure to a condition and the species responds negatively, the condition qualifies as a stressor and, during the subsequent status review, we attempt to determine how significant the stressor is. If the stressor is sufficiently significant that it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act, the stressor constitutes a threat to the species. Thus, the identification of conditions that could affect a species negatively may not be sufficient to compel a finding that the information in the petition and our files is substantial. The information must include evidence sufficient to suggest that these conditions may be operative threats that act on the species to a sufficient degree that the species may meet the definition of an endangered or threatened species under the Act.

    Evaluation of a Petition To List the Florida Scrub Lizard as an Endangered or Threatened Species Under the Act Species and Range

    Florida scrub lizard (Sceloporus woodi): Florida.

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from the Center for Biological Diversity, requesting that 53 species of reptiles and amphibians, including the Florida scrub lizard, be listed under the Act as endangered or threatened species and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Florida scrub lizard (Sceloporus woodi) may be warranted, based on Factors A and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either “endangered species” under section 3(6) of the Act or “threatened species” under section 3(20) of the Act, including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0087 under the Supporting Documents section.

    Evaluation of a Petition To List the Fourche Mountain Salamander as an Endangered or Threatened Species Under the Act Species and Range

    Fourche Mountain salamander (Plethodon fourchensis): Arizona.

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from the Center for Biological Diversity requesting that 53 species of reptiles and amphibians, including the Fourche Mountain salamander, be listed under the Act as endangered or threatened species and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Fourche Mountain salamander (Plethodon fourchensis). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0096 under the Supporting Documents section. Because the petition does not present substantial information indicating that listing the Fourche Mountain salamander may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0096 under the Supporting Documents section.

    Evaluation of a Petition To List the Joshua Tree as an Endangered or Threatened Species Under the Act Species and Range

    Joshua tree (Yucca brevifolia): Arizona, California, Nevada, and Utah.

    Petition History

    On September 29, 2015, we received a petition dated September 28, 2015, from Taylor Jones (representing Wild Earth Guardians), requesting that Yucca brevifolia (Joshua tree)—either as a full species (Yucca brevifolia) or as two infraspecific taxa—be listed as threatened and, if applicable, critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). On December 8, 2015, in a letter to the petitioner, we responded that we reviewed the information presented in the petition and did not find that an emergency listing under Section 4(b)(7) of the Act was necessary. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Joshua tree (Yucca brevifolia) may be warranted, based on Factors A and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either “endangered species” under section 3(6) of the Act or “threatened species” under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0088 under the Supporting Documents section.

    Evaluation of a Petition To List Lassics Lupine as an Endangered or Threatened Species Under the Act Species and Range

    Lassics lupine (Lupinus constancei): California.

    Petition History

    On January 15, 2016, we received a petition, dated January 15, 2016, from David Imper, Sydney Carothers, the Center for Biological Diversity, and the California Native Plant Society, requesting that Lassics lupine (Lupinus constancei) be emergency listed as endangered and critical habitat designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition. On March 29, 2016, we sent the petitioners a letter notifying them of receipt of the petition. Because the Act does not provide for petitions to emergency list, we treat petitions to emergency list as regular petitions to list under the Act. However, in evaluating petitions to list, we consider whether emergency listing under Section 4(b)(7) of the Act is necessary. As a result, our letter notifying petitioners of receipt of the petition also informed them that we did not find that emergency listing was necessary.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Lassics lupine (Lupinus constancei) may be warranted, based on Factors A, C, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either “endangered species” under section 3(6) of the Act or “threatened species” under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0089 under the Supporting Documents section.

    Evaluation of a Petition To List the Lesser Virgin Islands Skink as an Endangered or Threatened Species Under the Act Species and Range

    Lesser Virgin Islands skink (Spondylurus semitaeniatus): Virgin Islands.

    Petition History

    On February 11, 2014, we received a petition dated February 11, 2014, from the Center for Biological Diversity, requesting that the Culebra skink, Mona skink, Monito skink, lesser Virgin Islands skink, Virgin Islands bronze skink, Puerto Rican skink, greater Saint Croix skink, greater Virgin Islands skink, and lesser Saint Croix skink be listed as endangered and critical habitat be designated for these species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). We acknowledged receipt of this petition via email (from Doug Krofta to Collette Adkins Giese) on February 12, 2014. This finding addresses the lesser Virgin Islands skink. The Culebra skink, greater Saint Croix skink, Mona skink, Puerto Rican skink, Virgin Islands bronze skink, greater Virgin Islands skink, and lesser Saint Croix skink were addressed in a separate evaluation, which published in the Federal Register on January 12, 2016 (81 FR 1368). The Monito skink was addressed in a separate evaluation which published in the Federal Register on March 16, 2016 (81 FR 14058).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the lesser Virgin Islands skink (Spondylurus semitaeniatus) may be warranted, based on Factors C and D. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either “endangered species” under section 3(6) of the Act or “threatened species” under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0098 under the Supporting Documents section.

    Evaluation of a Petition To List the American Pika as an Endangered or Threatened Species Under the Act Species and Range

    Pika, American (Ochotona princeps): Colorado, Idaho, Montana, Nevada, Utah, Wyoming, Canada (British Columbia and Alberta).

    Petition History

    On April 21, 2016, we received a petition dated April 14, 2016, from Mr. Timothy Eng, requesting that the American pika (Ochotona princeps) be listed as endangered or threatened and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the American pika (Ochotona princeps). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0091 under the Supporting Documents section. Because the petition does not present substantial information indicating that listing the American pika may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, the American pika or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0091 under the Supporting Documents section.

    Evaluation of a Petition To List Ricord's Rock Iguana as an Endangered or Threatened Species Under the Act Species and Range

    Ricord's rock iguana (Cyclura ricordii): Dominican Republic, Haiti.

    Petition History

    On March 17, 2016, we received a petition dated March 14, 2016, from Grupo Jaragua, International Iguana Foundation, International Reptile Conservation Foundation, and the Zoological Society of San Diego, requesting that Ricord's rock iguana (Cyclura ricordii) be listed as endangered or threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Ricord's rock iguana (Cyclura ricordii). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0092 under the Supporting Documents section. Because the petition does not present substantial information indicating that listing the Ricord's rock iguana may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0092 under the Supporting Documents section.

    Evaluation of a Petition To Delist the Spectacled Eider Under the Act Species and Range

    Spectacled eider (Somateria fischeri): Alaska.

    Petition History

    On March 30, 2016, we received a petition dated January 29, 2016, from Tim Langer, Ph.D., requesting that the spectacled eider and Alaska-breeding Steller's eider be delisted due to error in information under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the spectacled eider (Somateria fischeri). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R7-ES-2016-0041 under the Supporting Documents section. Because the petition does not present substantial information indicating that delisting the spectacled eider may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R7-ES-2016-0041 under the Supporting Documents section.

    Evaluation of a Petition To Delist the Steller's Eider Under the Act Species and Range

    Steller's eider (Polysticta stelleri) (Alaska Population): Alaska.

    Petition History

    On March 30, 2016, we received a petition dated January 29, 2016, from Tim Langer, Ph.D., requesting that the spectacled eider and Alaska-breeding Steller's eider be delisted due to error in information under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Alaska-breeding Steller's eider (Polysticta stelleri). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R7-ES-2016-0093 under the Supporting Documents section. Because the petition does not present substantial information indicating that delisting the Steller's eider may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R7-ES-2016-0093 under the Supporting Documents section.

    Evaluation of a Petition To List the Wyoming Pocket Gopher as an Endangered or Threatened Species Under the Act Species and Range

    Wyoming pocket gopher (Thomomys clusius): Colorado and Wyoming.

    Petition History

    On April 15, 2016, we received a petition dated April 6, 2016, from WildEarth Guardians, requesting that Wyoming pocket gopher be listed as endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition, and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Wyoming pocket gopher (Thomomys clusius). The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0094 under the Supporting Documents section. Because the petition does not present substantial information indicating that listing the Wyoming pocket gopher may be warranted, we are not initiating a status review of this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, the Wyoming pocket gopher or its habitat at any time (see FOR FURTHER INFORMATION CONTACT).

    Additional information regarding our review of the petition, can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0094 under the Supporting Documents section.

    Conclusion

    On the basis of our evaluation of the information presented in the petitions under section 4(b)(3)(A) of the Act, we have determined that the petitions summarized above for the Fourche Mountain salamander, American pika, Ricord's rock iguana, spectacled eider, Alaska-breeding Steller's eider, and the Wyoming pocket gopher do not present substantial scientific or commercial information indicating that the requested actions may be warranted. Therefore, we are not initiating status reviews for these species.

    We have determined that the petitions summarized above for the Florida scrub lizard, Joshua tree, Lassics lupine, and lesser Virgin Islands skink present substantial scientific or commercial information indicating that the requested actions may be warranted. Because we have found that these petitions present substantial information indicating that the petitioned actions may be warranted, we are initiating status reviews to determine whether these actions under the Act are warranted. At the conclusion of each status review, we will issue a finding, in accordance with section 4(b)(3)(B) of the Act, as to whether or not the Service finds that the petitioned action is warranted.

    It is important to note that the standard for a 90-day finding differs from the Act's standard that applies to a status review to determine whether a petitioned action is warranted. In making a 90-day finding, we consider only the information in the petition and sources cited in the petition, and we evaluate merely whether that information constitutes “substantial information” indicating that the petitioned action “may be warranted.” In a 12-month finding, we must complete a thorough status review of the species and evaluate the “best scientific and commercial data available” to determine whether a petitioned action “is warranted.” Because the Act's standards for 90-day and 12-month findings are different, a “substantial” 90-day finding does not mean that the 12-month finding will result in a “warranted” finding.

    References Cited

    A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the appropriate lead field offices (contact the person listed under FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this notice are staff members of the Ecological Services Program, U.S. Fish and Wildlife Service.

    Authority:

    The authority for these actions is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 1, 2016. James W. Kurth, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-22071 Filed 9-13-16; 8:45 am] BILLING CODE 4333-15-P
    81 178 Wednesday, September 14, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Fremont and Winema Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Fremont and Winema Resource Advisory Committee (RAC) will meet in Lakeview, Oregon. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. RAC information can be found at the following Web site: http://facadatabase.gov/committee/committee.aspx?cid=2266&aid=171.

    DATES:

    The meeting will be held on September 29, 2016, from 9 a.m. to 5 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Lakeview Interagency Building, Main Conference Rooms, 1301 South G Street, Lakeview, Oregon.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Lakeview Interagency Building, 1301 South G Street, Lakeview, Oregon. Please call ahead at 541-947-6328 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    David Brillenz, Designated Federal Official by phone at 541-947-6328, 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:

    1. Introduce new Fremont and Winema RAC members,

    2. Provide ethics training, and

    3. Provide recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by September 15, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Roland Giller, Partnership Coordinator, 38500 Highway 97 North, Chiloquin, Oregon 97624; or by email to [email protected], or via facsimile to 541-783-2134.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: September 7, 2016. Eric Watrud, Acting Fremont-Winema N.F. Supervisor.
    [FR Doc. 2016-22065 Filed 9-13-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE [Docket Number 160907825-6825-01] Request for Comments for the Commission on Evidence-Based Policymaking AGENCY:

    Commission on Evidence-Based Policymaking, Department of Commerce.

    ACTION:

    Request for comments.

    SUMMARY:

    The Evidence-Based Policymaking Commission Act of 2016 (Pub. L. 114-140), enacted March 30, 2016, established a 15-member Commission on Evidence-Based Policymaking. The Commission is charged with examining strategies to increase the availability and use of government data, in order to build evidence related to government programs and policies, while protecting the privacy and confidentiality of the data. Over the next year, the Commission will consider how data, research, and evaluation are currently used to build evidence and continuously improve public programs and policies, and how to strengthen evidence-building to inform program and policy design and implementation. The Commission's work will conclude with a presentation of findings and recommendations on evidence-building to Congress and the President. This request for comments seeks public input on a range of issues, including topics the authorizing law directs the Commission to consider. The public comments received from this request will be used to inform future deliberations of the Commission.

    DATES:

    Comments must be received by November 14, 2016.

    ADDRESSES:

    Submit comments through the Federal eRulemaking Portal. We will not accept comments by fax or paper delivery. Please include the Docket ID and the phrase “Commission on Evidence-Based Policymaking Comments” at the beginning of your comments. Please also indicate which questions described in the SUPPLEMENTARY INFORMATION of this notice are addressed in your comments.

    Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically under Docket ID USBC-2016-0003. Information on using Regulations.gov, including instructions for accessing Commission documents, submitting comments, and viewing the docket, is available on the site under “How to Use This Site.”

    Privacy Note: Comments submitted in response to this notice may be made available to the public through relevant Web sites. Therefore, commenters should only include in their comments information that they wish to make publicly available on the Internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public, notwithstanding the inclusion of the routine notice.

    FOR FURTHER INFORMATION CONTACT:

    Nick Hart, Policy and Research Director for the Commission on Evidence-Based Policymaking, [email protected]

    SUPPLEMENTARY INFORMATION: Purpose

    The Commission on Evidence-Based Policymaking (hereafter, “Commission”) established by Public Law 114-140 is charged with examining strategies to improve the production and use of evidence to support U.S. government programs and policies. Specifically, the Commission is considering how to increase the availability and use of government data in support of evidence-building activities related to government programs and policies, while protecting the privacy and confidentiality of such data.

    This request for comments offers government entities, researchers, evaluators, contractors, and other interested parties the opportunity to inform the Commission's work and provide recommendations on core questions the Commission will consider.

    Request for Comments

    Through this request for comments, the Commission is seeking initial feedback from a broad range of stakeholders on questions that will contribute to the Commission's future activities and fulfillment of its duties, potentially including any findings and recommendations. This request for comments is for information-gathering and fact-finding purposes only, and should not be construed as a solicitation or as an obligation on the part of the Commission or Federal agencies to agree with submitted comments or to make recommendations regarding specific issues identified in public comments.

    The Commission requests that respondents address the following questions, where possible and applicable. Respondents are encouraged to focus on questions informed by relevant expertise or perspectives. Please clearly indicate which question(s) you address in your response and any evidence to support assertions, where practicable.

    Overarching Questions

    1. Are there successful frameworks, policies, practices, and methods to overcome challenges related to evidence-building from state, local, and/or international governments the Commission should consider when developing findings and recommendations regarding Federal evidence-based policymaking? If so, please describe.

    2. Based on identified best practices and existing examples, what factors should be considered in reasonably ensuring the security and privacy of administrative and survey data?

    Data Infrastructure and Access

    3. Based on identified best practices and existing examples, how should existing government data infrastructure be modified to best facilitate use of and access to administrative and survey data?

    4. What data-sharing infrastructure should be used to facilitate data merging, linking, and access for research, evaluation, and analysis purposes?

    5. What challenges currently exist in linking state and local data to federal data? Are there successful instances where these challenges have been addressed?

    6. Should a single or multiple clearinghouse(s) for administrative and survey data be established to improve evidence-based policymaking? What benefits or limitations are likely to be encountered in either approach?

    7. What data should be included in a potential U.S. government data clearinghouse(s)? What are the current legal or administrative barriers to including such data in a clearinghouse or linking the data?

    8. What factors or strategies should the Commission consider for how a clearinghouse(s) could be self-funded? What successful examples exist for self-financing related to similar purposes?

    9. What specific administrative or legal barriers currently exist for accessing survey and administrative data?

    10. How should the Commission define “qualified researchers and institutions?” To what extent should administrative and survey data held by government agencies be made available to “qualified researchers and institutions?”

    11. How might integration of administrative and survey data in a clearinghouse affect the risk of unintentional or unauthorized access or release of personally-identifiable information, confidential business information, or other identifiable records? How can identifiable information be best protected to ensure the privacy and confidentiality of individual or business data in a clearinghouse?

    12. If a clearinghouse were created, what types of restrictions should be placed on the uses of data in the clearinghouse by “qualified researchers and institutions?”

    13. What technological solutions from government or the private sector are relevant for facilitating data sharing and management?

    14. What incentives may best facilitate interagency sharing of information to improve programmatic effectiveness and enhance data accuracy and comprehensiveness?

    Data Use in Program Design, Management, Research, Evaluation, and Analysis

    15. What barriers currently exist for using survey and administrative data to support program management and/or evaluation activities?

    16. How can data, statistics, results of research, and findings from evaluation, be best used to improve policies and programs?

    17. To what extent can or should program and policy evaluation be addressed in program designs?

    18. How can or should program evaluation be incorporated into program designs? What specific examples demonstrate where evaluation has been successfully incorporated in program designs?

    19. To what extent should evaluations specifically with either experimental (sometimes referred to as “randomized control trials”) or quasi-experimental designs be institutionalized in programs? What specific examples demonstrate where such institutionalization has been successful and what best practices exist for doing so?

    Guidance for Submitting Documents

    We ask that each respondent include the name and address of his or her institution or affiliation, and the name, title, mailing and email addresses, and telephone number of a contact person for his or her institution or affiliation, if any.

    Rights to Materials Submitted

    By submitting material in response to this request, you agree to grant the Commission a worldwide, royalty-free, perpetual, irrevocable, nonexclusive license to use the material, and to post it. Further, you agree that you own, have a valid license, or are otherwise authorized to provide the material to the Commission. The Commission will not provide any compensation for material submitted in response to this request for comments.

    Dated: September 8, 2016. Shelly Martinez, Executive Director of the Commission on Evidence-Based Policymaking.
    [FR Doc. 2016-22002 Filed 9-13-16; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration Iowa State University of Science and Technology, et al.; Notice of Consolidated Decision on Applications for Duty-Free Entry of Electron Microscope

    This is a decision consolidated pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 3720, U.S. Department of Commerce, 14th and Constitution Avenue NW., Washington, DC.

    Docket Number: 15-052. Applicant: Iowa State University of Science and Technology, Ames, IA 50011-3020. Instrument: Electron Microscope. Manufacturer: FEI, Company, Czech Republic and Great Britain. Intended Use: See notice at 81 FR 41519, June 27, 2016.

    Docket Number: 16-007. Applicant: University of California, Riverside, Riverside, CA 92521. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: See notice at 81 FR 41519, June 27, 2016.

    Comments: None received. Decision: Approved. No instrument of equivalent scientific value to the foreign instrument, for such purposes as this instrument is intended to be used, is being manufactured in the United States at the time the instrument was ordered. Reasons: Each foreign instrument is an electron microscope and is intended for research or scientific educational uses requiring an electron microscope. We know of no electron microscope, or any other instrument suited to these purposes, which was being manufactured in the United States at the time of order of each instrument.

    Dated: September 8, 2016. Gregory W. Campbell, Director, Subsidies Enforcement Office, Enforcement and Compliance.
    [FR Doc. 2016-22099 Filed 9-13-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-580-888] Certain Carbon and Alloy Steel Cut-to-Length Plate From the Republic of Korea: Preliminary Negative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are not being provided to producers/exporters of certain carbon and alloy steel cut-to-length plate (CTL plate) from the Republic of Korea (Korea). The period of investigation is January 1, 2015, through December 31, 2015. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Effective September 14, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Yasmin Bordas or John Corrigan, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-3813 or (202) 482-7438, respectively.

    SUPPLEMENTARY INFORMATION:

    Alignment of Final Countervailing Duty (CVD) Determination With Final Antidumping Duty (AD) Determination

    On the same day the Department initiated this CVD investigation, the Department also initiated CVD investigations of CTL plate from Brazil and the People's Republic of China (PRC) and AD investigations of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey.1 The CVD investigation covers the same merchandise as the AD investigations of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, South Africa, and Taiwan.2 On August 25, 2016, in accordance with section 705(a)(1) of the Tariff Act of 1930, as amended (Act), Petitioners 3 requested alignment of the final CVD determination with the final AD determination of CTL plate from Korea.4 Therefore, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final CVD determination with the final AD determination of CTL plate from Austria, Belgium, France, Germany, Italy, Japan, and Taiwan. Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than January 18, 2017, unless postponed.5

    1See Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil, the People's Republic of China, and the Republic of Korea: Initiation of Countervailing Duty Investigations, 81 FR 27098 (May 5, 2016) (Initiation Notice); see also Certain Carbon and Alloy Steel Cut-To-Length Plate From Austria, Belgium, Brazil, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the People's Republic of China, South Africa, Taiwan, and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations, 81 FR 27089 (May 5, 2016).

    2 For a complete case history, see Memorandum from Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Decision Memorandum for the Preliminary Negative Determination: Countervailing Duty Investigation of Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea,” dated concurrently with this notice and hereby incorporated by reference, and adopted by this notice (Preliminary Decision Memorandum).

    3 Petitioners in this investigation are ArcelorMittal USA LLC, Nucor Corporation, and SSAB Enterprises LLC.

    4See Letter from Petitioners, “Carbon and Alloy Steel Cut-to-Length Plate from Korea: Petitioners' Request to Align the Countervailing Duty Final Determinations with the Companion Antidumping Duty Final Determinations,” dated August 25, 2016.

    5 The AD determinations of CTL plate from Brazil, South Africa, and Turkey were not postponed. See Certain Carbon and Alloy Steel Cut-to-Length Plate Austria, Belgium, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the People's Republic of China, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 81 FR 59185 (August 29, 2016).

    Scope of the Investigation

    The scope of this investigation covers CTL plate from Korea. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the Preamble to the Department's regulations,6 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).7 Certain interested parties commented on the scope of this 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 Department's Preliminary Scope Memorandum issued concurrently with this notice.8 The Department is preliminarily modifying the scope language as it appeared in the Initiation Notice to clarify the exclusion for stainless steel plate.9 The Department is also correcting two tariff numbers that were misidentified in the Petitions and in the Initiation Notice. 10

    6See Antidumping Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997) (Preamble).

    7See Initiation Notice, 81 FR at 27099.

    8See Memorandum to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Certain Carbon and Alloy Steel Cut-to-Length Plate From Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the Republic of South Africa, Taiwan, and Turkey: Scope Comments Decision Memorandum for the Preliminary Determinations” (Preliminary Scope Memorandum) dated concurrently with this preliminary determination.

    9 Specifically, the revised scope now states that stainless steel plate must not contain more than 1.2 percent of carbon by weight.

    10Id.

    Methodology

    The Department is conducting this CVD investigation in accordance with section 701 of the Act. For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum.11 A list of topics discussed 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 http://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content.

    11See (Preliminary Decision Memorandum).

    Preliminary Determination

    For this preliminary determination, we calculated a de minimis countervailable subsidy rate for POSCO. Consistent with section 703(b)(4)(A) of the Act, we are disregarding this rate and preliminarily determine that countervailable subsides are not being provided to producers/exporters of the subject merchandise in Korea. Accordingly, we did not calculate an all-others rate because the rate for the individually investigated company is de minimis.

    We preliminarily determine the countervailable subsidy rate to be:

    Company Subsidy rate POSCO 0.62 percent (de minimis)

    Because we preliminarily determine that the CVD rates in this investigation are de minimis, we will not direct U.S. Customs and Border Protection to suspend liquidation of entries of subject merchandise.

    Verification

    As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by the respondent prior to making our final determination.

    International Trade Commission Notification

    In accordance with section 703(f) of the Act, we will notify the International Trade Commission (ITC) of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.

    In accordance with section 705(b)(3) of the Act, if our final determination is affirmative, the ITC will make its final determination within 75 days after the Department makes its final determination.

    Disclosure and Public Comment

    The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.12 Interested parties may submit case and rebuttal briefs, as well as request a hearing.13 For a schedule of the deadlines for filing case briefs, rebuttal briefs, and hearing requests, see the Preliminary Decision Memorandum.

    12See 19 CFR 351.224(b).

    13See 19 CFR 351.309(c)-(d) and 19 CFR 351.310(c).

    This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: September 6, 2016. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. Appendix I Scope of the Investigation

    The products covered by this investigation are certain carbon and alloy steel hot-rolled or forged flat plate products not in coils, whether or not painted, varnished, or coated with plastics or other non-metallic substances (cut-to-length plate). Subject merchandise includes plate that is produced by being cut-to-length from coils or from other discrete length plate and plate that is rolled or forged into a discrete length. The products covered include (1) Universal mill plates (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, and of a thickness of not less than 4 mm, which are not in coils and without patterns in relief), and (2) hot-rolled or forged flat steel products of a thickness of 4.75 mm or more and of a width which exceeds 150 mm and measures at least twice the thickness, and which are not in coils, whether or not with patterns in relief. The covered products described above may be rectangular, square, circular or other shapes and include products of either rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling”, (e.g., products which have been beveled or rounded at the edges).

    For purposes of the width and thickness requirements referenced above, the following rules apply:

    (1) Except where otherwise stated where the nominal and actual thickness or width measurements vary, a product from a given subject country is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the product is already covered by an order existing on that specific country (e.g., orders on hot-rolled flat-rolled steel); and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less by weight.

    Subject merchandise includes cut-to-length plate that has been further processed in the subject country or a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, beveling, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the cut-to-length plate.

    All products that meet the written physical description, are within the scope of this investigation unless specifically excluded or covered by the scope of an existing order. The following products are outside of, and/or specifically excluded from, the scope of this investigation:

    (1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;

    (2) military grade armor plate certified to one of the following specifications or to a specification that references and incorporates one of the following specifications:

    • MIL-A-12560,

    • MIL-DTL-12560H,

    • MIL-DTL-12560J,

    • MIL-DTL-12560K,

    • MIL-DTL-32332,

    • MIL-A-46100D,

    • MIL-DTL-46100-E,

    • MIL-46177C,

    • MIL-S-16216K Grade HY80,

    • MIL-S-16216K Grade HY100,

    • MIL-S-24645A HSLA-80;

    • MIL-S-24645A HSLA-100,

    • T9074-BD-GIB-010/0300 Grade HY80,

    • T9074-BD-GIB-010/0300 Grade HY100,

    • T9074-BD-GIB-010/0300 Grade HSLA80,

    • T9074-BD-GIB-010/0300 Grade HSLA100, and

    • T9074-BD-GIB-010/0300 Mod. Grade HSLA115,

    except that any cut-to-length plate certified to one of the above specifications, or to a military grade armor specification that references and incorporates one of the above specifications, will not be excluded from the scope if it is also dual- or multiple-certified to any other non-armor specification that otherwise would fall within the scope of this order;

    (3) stainless steel plate, containing 10.5 percent or more of chromium by weight and not more than 1.2 percent of carbon by weight;

    (4) CTL plate meeting the requirements of ASTM A-829, Grade E 4340 that are over 305 mm in actual thickness;

    (5) Alloy forged and rolled CTL plate greater than or equal to 152.4 mm in actual thickness meeting each of the following requirements:

    (a) Electric furnace melted, ladle refined & vacuum degassed and having a chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.20,

    • Manganese 1.20-1.60,

    • Nickel not greater than 1.0,

    • Sulfur not greater than 0.007,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-2.5,

    • Molybdenum 0.35-0.80,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) With a Brinell hardness measured in all parts of the product including mid thickness falling within one of the following ranges:

    (i) 270-300 HBW,

    (ii) 290-320 HBW, or

    (iii) 320-350HBW;

    (c) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.0, C not exceeding 0.5, D not exceeding 1.5; and

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 2 mm flat bottom hole;

    (6) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, Ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.15,

    • Manganese 1.20-1.50,

    • Nickel not greater than 0.4,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.20-1.50,

    • Molybdenum 0.35-0.55,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.5, C not exceeding 1.0, D not exceeding 1.5;

    (c) Having the following mechanical properties:

    (i) With a Brinell hardness not more than 237 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 75ksi min and UTS 95ksi or more, Elongation of 18% or more and Reduction of area 35% or more; having charpy V at −75 degrees F in the longitudinal direction equal or greater than 15 ft. lbs (single value) and equal or greater than 20 ft. lbs (average of 3 specimens) and conforming to the requirements of NACE MR01-75; or

    (ii) With a Brinell hardness not less than 240 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 90 ksi min and UTS 110 ksi or more, Elongation of 15% or more and Reduction of area 30% or more; having charpy V at −40 degrees F in the longitudinal direction equal or greater than 21 ft. lbs (single value) and equal or greater than 31 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301;

    (7) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.25-0.30,

    • Silicon not greater than 0.25,

    • Manganese not greater than 0.50,

    • Nickel 3.0-3.5,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-1.5,

    • Molybdenum 0.6-0.9,

    • Vanadium 0.08 to 0.12

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm.

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.0(t) and 0.5(h), B not exceeding 1.5(t) and 1.0(h), C not exceeding 1.0(t) and 0.5(h), and D not exceeding 1.5(t) and 1.0(h);

    (c) Having the following mechanical properties: A Brinell hardness not less than 350 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 145ksi or more and UTS 160ksi or more, Elongation of 15% or more and Reduction of area 35% or more; having charpy V at −40 degrees F in the transverse direction equal or greater than 20 ft. lbs (single value) and equal or greater than 25 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301.

    At the time of the filing of the petition, there was an existing countervailing duty order on certain cut-to-length carbon-quality steel plate from Korea. See Final Affirmative Countervailing Duty Determination: Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of Korea, 64 FR 73,176 (Dep't Commerce Dec. 29, 1999), as amended, 65 FR 6,587 (Dep't Commerce Feb. 10, 2000) (1999 Korea CVD Order). The scope of the countervailing duty investigation with regard to cut-to-length plate from Korea covers only (1) subject cut-to-length plate not within the physical description of cut-to-length carbon quality steel plate in the 1999 Korea CVD Order regardless of producer or exporter, and (2) cut-to-length plate produced and/or exported by those companies that were excluded or revoked from the 1999 Korea CVD Order as of April 8, 2016. The only revoked or excluded company is Pohang Iron and Steel Company, also known as POSCO.

    The products subject to the investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7225.40.1110, 7225.40.1180, 7225.40.3005, 7225.40.3050, 7226.20.0000, and 7226.91.5000.

    The products subject to the investigation may also enter under the following HTSUS item numbers: 7208.40.6060, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.19.1500, 7211.19.2000, 7211.19.4500, 7211.19.6000, 7211.19.7590, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.10.0000, 7214.30.0010, 7214.30.0080, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7225.11.0000, 7225.19.0000, 7225.40.5110, 7225.40.5130, 7225.40.5160, 7225.40.7000, 7225.99.0010, 7225.99.0090, 7226.11.1000, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.0500, 7226.91.1530, 7226.91.1560, 7226.91.2530, 7226.91.2560, 7226.91.7000, 7226.91.8000, and 7226.99.0180.

    The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope Comments IV. Scope of the Investigation V. Alignment VI. Injury Test VII. Use of Facts Otherwise Available VIII. Subsidies Valuation IX. Analysis of Programs X. ITC Notification XI. Disclosure and Public Comment XII. Verification XIII. Conclusion
    [FR Doc. 2016-21997 Filed 9-13-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Analysis and Review of Ocean Exploration Video Products AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Correction.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The notice document was published in the Federal Register volume 81, Page 61193, on September 6, 2016.

    DATES:

    Written comments must be submitted on or before November 7, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Nick Pawlenko, LTJG/NOAA. NOAA Office of Ocean Exploration and Research, 215 South Ferry Road, Narragansett, RI 02882 (401) 874-6478.

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for a new information collection.

    Telepresence uses satellite communication from ship to shore to bring the unknown ocean to the screens of scientists and the general public in their homes, schools or offices. With technology constantly evolving it is important to address the needs of the shore based scientists and public to maintain a high level of participation. We will use voluntary surveys to identify the needs of users of data, best approaches to leverage expertise of shore based participants and to create a “Citizen Science” web portal for meaningful public engagement focused on

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 6, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-21722 Filed 9-13-16; 8:45 am] BILLING CODE 3510-KD-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration Digital Economy Board of Advisors Meeting AGENCY:

    National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces an open meeting of the Digital Economy Board of Advisors. The Board advises and provides recommendations to the Secretary of Commerce, through the Assistant Secretary of Commerce for Communications and Information and the National Telecommunications and Information Administration (NTIA), on a broad range of issues concerning the digital economy and Internet policy.

    DATES:

    The meeting will be held in two sessions on September 30, 2016, from 8:30 a.m. to 12:30 p.m., Pacific Daylight Time (PDT), and from 1:30 p.m. to 2:30 p.m. PDT.

    ADDRESSES:

    The meeting will be held at Mozilla, 331 E. Evelyn Avenue, Mountain View, CA 94041. Public comments may be mailed to: Digital Economy Board of Advisors, National Telecommunications and Information Administration, 1401 Constitution Avenue NW., Room 4725, Washington, DC 20230 or emailed to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Remaley, Designated Federal Officer (DFO), at (202) 482-3821 or [email protected]; and/or visit NTIA's Web site at https://www.ntia.doc.gov/category/digital-economy-board-advisors.

    SUPPLEMENTARY INFORMATION:

    Background: Economic prosperity is increasingly tied to the digital economy, which is a key driver of competitiveness, business expansion, and innovation. Indeed, virtually every modern company relies on the Internet to grow and thrive. As a result, the Department of Commerce (Department) has made technology and Internet policy a top priority, investing resources to address challenges and opportunities businesses face in a global economy.

    Last year, the Secretary of Commerce unveiled the Department's Digital Economy Agenda, which will help businesses and consumers realize the potential of the digital economy to advance growth and opportunity. The Agenda focuses on four key objectives: Promoting a free and open Internet worldwide; promoting trust online; ensuring access for workers, families, and companies; and promoting innovation. To support the Agenda, the Secretary directed NTIA to create the Digital Economy Board of Advisors as a mechanism for receiving regular advice from leaders in industry, academia, and civil society. See Committee Charter at https://www.ntia.doc.gov/files/ntia/publications/deba_charter_12222015.pdf.

    The Digital Economy Board of Advisors convened its first meeting on May 16, 2016, to determine preliminary priorities and work streams. The meeting on September 30, 2016, will be the second full meeting of the Board.

    This Board is subject to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and is consistent with the National Telecommunications and Information Administration Act, 47 U.S.C. 904(b). The Board functions solely as an advisory body in compliance with the FACA. For more information about the Board, visit https://www.ntia.doc.gov/category/digital-economy-board-advisors.

    Matters to be Considered: The Board provides independent advice and recommendations to the Secretary, through the Assistant Secretary, on a broad range of policy issues impacting the digital economy. The Board's mission is to provide advice to the Department on increasing domestic prosperity, improving education, and facilitating participation in political and cultural life through the application and expansion of digital technologies. The Board's advice focuses on ensuring the Internet continues to thrive as an engine of growth, innovation, and free expression. The Department will use the advice provided by the Board to inform its decision-making processes and to advance Administration goals.

    NTIA will post a detailed agenda on its Web site, https://www.ntia.doc.gov/category/digital-economy-board-advisors, prior to the meeting. To the extent that the meeting time and agenda permit, any member of the public may speak to or otherwise address the Board regarding the agenda items during the meeting.

    Time and Date: The meeting will be held in two sessions on September 30, 2016, from 8:30 a.m. to 12:30 p.m., Pacific Daylight Time, and from 1:30 p.m. to 2:30 p.m. PDT. The meeting will be available via two-way audio link and may be webcast. Please refer to NTIA's Web site, https://www.ntia.doc.gov/category/digital-economy-board-advisors, for the most up-to-date meeting agenda and access information for the meeting.

    Place: The meeting will be held at Mozilla, 331 E. Evelyn Avenue, Mountain View, CA 94041. Public comments may be mailed to: Digital Economy Board of Advisors, National Telecommunications and Information Administration, 1401 Constitution Avenue NW., Room 4725, Washington, DC 20230. The meeting will be open to the public and press on a first-come, first-served basis. Space is limited. The meeting is physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Ms. Remaley at (202) 482-3821 or [email protected] at least five (5) business days before the meeting.

    Status: Interested parties are invited to attend and to submit written comments to the Board at any time before or after the meeting. Parties wishing to submit written comments for consideration by the Board in advance of the meeting must send them to NTIA at the above-listed address. Comments must be received five (5) business days before the scheduled meeting date to provide sufficient time for review. Comments received after this date will be distributed to the Board, but may not be reviewed prior to the meeting. We also request that comments be submitted electronically to [email protected] with the subject: “DEBA Second Meeting Comment.” Comments provided via email also may be submitted in writing.

    Records: NTIA maintains records of all Board proceedings. Board records are available for public inspection at NTIA's Washington, DC office at the address above. Documents, including the Board's charter, member list, agendas, minutes, and any reports are available on NTIA's Web site at https://www.ntia.doc.gov/category/digital-economy-board-advisors.

    Dated: September 9, 2016. Kathy D. Smith, Chief Counsel, National Telecommunications and Information Administration.
    [FR Doc. 2016-22056 Filed 9-13-16; 8:45 am] BILLING CODE 3510-60-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION Community Bank Advisory Council Meeting AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice sets forth the announcement of a public meeting of the Community Bank Advisory Council (CBAC or Council) of the Consumer Financial Protection Bureau (CFPB or Bureau). The notice also describes the functions of the Council. Notice of the meeting is permitted by section 9 of the CBAC Charter and is intended to notify the public of this meeting.

    DATES:

    The meeting date is Thursday, September 29, 2016, 3:30 p.m. to 5:00 p.m. eastern daylight time.

    ADDRESSES:

    The meeting location is the Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002.

    FOR FURTHER INFORMATION CONTACT:

    Crystal Dully, Outreach and Engagement Associate, 202-435-9588, [email protected], Consumer Advisory Board and Councils Office, External Affairs, 1275 First Street NE., Washington, DC 20002.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 9(d) of the CBAC Charter states:

    (1) Each meeting of the Council shall be open to public observation, to the extent that a facility is available to accommodate the public, unless the Bureau, in accordance with paragraph (4) of this section, determines that the meeting shall be closed. The Bureau also will make reasonable efforts to make the meetings available to the public through live recording. (2) Notice of the time, place and purpose of each meeting, as well as a summary of the proposed agenda, shall be published in the Federal Register not more than 45 or less than 15 days prior to the scheduled meeting date. Shorter notice may be given when the Bureau determines that the Council's business so requires; in such event, the public will be given notice at the earliest practicable time. (3) Minutes of meetings, records, reports, studies, and agenda of the Council shall be posted on the Bureau's Web site (www.consumerfinance.gov). (4) The Bureau may close to the public a portion of any meeting, for confidential discussion. If the Bureau closes a meeting or any portion of a meeting, the Bureau will issue, at least annually, a summary of the Council's activities during such closed meetings or portions of meetings.

    Section 2 of the CBAC Charter provides: “Pursuant to the executive and administrative powers conferred on the Bureau by Section 1012 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Director established the Community Bank Advisory Council to consult with the Bureau in the exercise of its functions under the Federal consumer financial laws as they pertain to community banks with total assets of $10 billion or less.”

    Section 3 of the CBAC Charter states: “a) The CFPB supervises depository institutions and credit unions with total assets of more than $10 billion and their respective affiliates, but other than the limited authority conferred by § 1026 of the Dodd-Frank Act, the CFPB does not have supervisory authority regarding credit unions and depository institutions with total assets of $10 billion or less. As a result, the CFPB does not have regular contact with these institutions, and it would therefore be beneficial to create a mechanism to ensure that their unique perspectives are shared with the Bureau. Small Business Regulatory Enforcement Fairness Act (SBREFA) panels provide one avenue to gather this input, but participants from community banks must possess no more than $175 million in assets, which precludes the participation of many. b) The Advisory Council shall fill this gap by providing an interactive dialogue and exchange of ideas and experiences between community bankers and Bureau staff. c) The Advisory Council shall advise generally on the Bureau's regulation of consumer financial products or services and other topics assigned to it by the Director. To carry out the Advisory Council's purpose, the scope of its activities shall include providing information, analysis, and recommendations to the Bureau. The output of Advisory Council meetings should serve to better inform the CFPB's policy development, rulemaking, and engagement functions.”

    II. Agenda

    The Community Bank Advisory Council will discuss youth financial capability and debt collection.

    Persons who need a reasonable accommodation to participate should contact [email protected], 202-435-9EEO, 1-855-233-0362, or 202-435-9742 (TTY) at least ten business days prior to the meeting or event to request assistance. The request must identify the date, time, location, and title of the meeting or event, the nature of the assistance requested, and contact information for the requester. CFPB will strive to provide, but cannot guarantee that accommodation will be provided for late requests.

    Individuals who wish to attend the Community Bank Advisory Council meeting must RSVP to [email protected] by noon, Wednesday, September 28, 2016. Members of the public must RSVP by the due date and must include “CBAC” in the subject line of the RSVP.

    III. Availability

    The Council's agenda will be made available to the public on Wednesday, September 14, 2016, via consumerfinance.gov. Individuals should express in their RSVP if they require a paper copy of the agenda.

    A recording and transcript of this meeting will be available after the meeting on the CFPB's Web site consumerfinance.gov.

    Dated: September 8, 2016. David Uejio, Acting Chief of Staff, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-22091 Filed 9-13-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF DEFENSE Department of the Navy Notice of Availability of Record of Decision for the Final Environmental Impact Statement for Land-Water Interface and Service Pier Extension at Naval Base Kitsap Bangor, Kitsap County, Washington AGENCY:

    Department of the Navy, DoD.

    ACTION:

    Notice.

    SUMMARY:

    The Department of the Navy (Navy), after carefully weighing the operational and environmental consequences of the proposed action, announces its decision to construct and operate a Land-Water Interface (LWI) in Hood Canal on the waterfront of Naval Base (NAVBASE) Kitsap Bangor, Washington (WA). The Navy will implement LWI Alternative 3, Port Security Barrier Modifications, which is the Preferred Alternative in the Final Environmental Impact Statement (EIS) of July 2016 for LWI and Service Pier Extension (SPE), NAVBASE Kitsap Bangor, WA. LWI Alternative 3 is also the environmentally preferred alternative and will fully meet the Navy's purpose and need to comply with Department of Defense directives to protect Navy TRIDENT submarines from increased and evolving threats; prevent the seizure, damage, or destruction of military assets; enhance security within the Waterfront Restricted Area; and comply with security requirements at NAVBASE Kitsap Bangor. Although the proposed SPE project was addressed in the Final EIS, a Navy decision on that project has been deferred and the details of that project are not discussed further in the Record of Decision (ROD).

    SUPPLEMENTARY INFORMATION:

    The complete text of the ROD is available for public viewing on the project Web site at https://www.nbkeis.com/lwi/Welcome.aspx along with the Final EIS and supporting documents. Single copies of the ROD will be made available upon request by contacting: LWI and SPE EIS Project Manager, Naval Facilities Engineering Command Northwest, 1101 Tautog Circle, Silverdale, WA 98315-1101, 360-396-0029.

    Dated: September 8, 2016. N.A. Hagerty-Ford, Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer.
    [FR Doc. 2016-22054 Filed 9-13-16; 8:45 am] BILLING CODE 3810-FF-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 9842-000] Mr. Ray F. Ward; Notice of Authorization for Continued Project Operation

    On August 28, 2014 Mr. Ray F. Ward, licensee for the Ward Mill Hydroelectric Project, filed an Application for a New License pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. The Ward Mill Hydroelectric Project facilities are located on the Watauga River, in the Township of Laurel Creek, Watauga County, North Carolina.

    The license for Project No. 9842 was issued for a period ending August 31, 2016. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.

    If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 9842 is issued to the licensee for a period effective September 1, 2016 through August 31, 2017 or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before August 31, 2017, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.

    If the project is not subject to section 15 of the FPA, notice is hereby given that the licensee, Mr. Ray F. Ward, is authorized to continue operation of the Ward Mill Hydroelectric Project, until such time as the Commission acts on its application for a subsequent license.

    Dated: September 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-22014 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14504-001] FFP Project 121, LLC; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process

    a. Type of Filing: Notice of Intent to File License Application and Request to Use the Traditional Licensing Process.

    b. Project No.: 14504-001.

    c. Date Filed: July 26, 2016.

    d. Submitted By: Rye Development, LLC on behalf of FFP Project 121, LLC.

    e. Name of Project: New Cumberland Locks and Dam Hydroelectric Project.

    f. Location: At the existing Army Corps of Engineers' New Cumberland Locks and Dam on the Ohio River in Jefferson County, Ohio and Hancock County, West Virginia. The project would occupy United States lands administered by the U.S. Army Corps of Engineers.

    g. Filed Pursuant to: 18 CFR 5.3 of the Commission's regulations.

    h. Applicant Contact: Mr. Erik Steimle, Vice President—Development, Rye Development, LLC, 334 NW 11th Ave., Portland, OR 97209; (503) 998-0230; email: [email protected]

    i. FERC Contact: Andy Bernick at (202) 502-8660; or email at [email protected]

    j. FFP Project 121, LLC filed its request to use the Traditional Licensing Process on July 26, 2016. FFP Project 121, LLC provided public notice of its request on July 29 through August 4, 2016. In a letter dated September 6, 2016, the Director of the Division of Hydropower Licensing approved FFP Project 121, LLC's request to use the Traditional Licensing Process.

    k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Ohio and West Virginia State Historic Preservation officers, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. With this notice, we are designating FFP Project 121, LLC as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.

    m. FFP Project 121, LLC filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.

    n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (http://www.ferc.gov), using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at the address in paragraph h.

    o. Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Dated: September 6, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-22015 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC14-78-003.

    Applicants: NRG Energy, Inc.

    Description: Request for Amended Blanket Authorization of NRG Energy, Inc., et al.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5429.

    Comments Due: 5 p.m. ET 9/27/16.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG16-146-000.

    Applicants: Indeck Niles, LLC.

    Description: Self-Certification of exempt wholesale generator (“EWG”) status of Indeck Niles, LLC.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5110.

    Comments Due: 5 p.m. ET 9/28/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2331-058; ER10-2319-049; ER10-2317-049; ER13-1351-031; ER10-2330-056.

    Applicants: J.P. Morgan Ventures Energy Corporation, BE Alabama LLC, BE CA LLC, Florida Power Development LLC, Utility Contract Funding, L.L.C.

    Description: Notice of Non-Material Change in Status of the J.P. Morgan Sellers.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5434.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER15-1706-004.

    Applicants: Newark Energy Center, LLC.

    Description: Compliance filing: Errata re Settlement Compliance Filing re EL15-97 et al to be effective 9/21/2015.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5059.

    Comments Due: 5 p.m. ET 9/28/16.

    Docket Numbers: ER15-2631-004.

    Applicants: Odell Wind Farm, LLC.

    Description: Notice of Non-Material Change in Status of Odell Wind Farm, LLC.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5430.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-915-001.

    Applicants: Comanche Solar PV, LLC.

    Description: Notice of Non-Material Change in Status of Comanche Solar PV, LLC.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5433.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-1718-001.

    Applicants: Tesoro Refining & Marketing Company LLC.

    Description: Market-Based Triennial Review Filing: Tesoro Amended Triennial Review Filing to be effective N/A.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5088.

    Comments Due: 5 p.m. ET 11/7/16.

    Docket Numbers: ER16-2360-000.

    Applicants: Great Western Wind Energy, LLC.

    Description: Supplement to August 2, 2016 Great Western Wind Energy, LLC tariff under ER16-2360.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5439.

    Comments Due: 5 p.m. ET 9/20/16.

    Docket Numbers: ER16-2557-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: 1139R2 Southwestern Public Service Company NITSA NOA Notice of Cancellation to be effective 2/1/2016.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5062.

    Comments Due: 5 p.m. ET 9/28/16.

    Docket Numbers: ER16-2558-000.

    Applicants: Pacific Gas and Electric Company.

    Description: § 205(d) Rate Filing: E&P Agreements for Alamo Springs Solar 1 and 2 to be effective 9/8/2016.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5123.

    Comments Due: 5 p.m. ET 9/28/16.

    Docket Numbers: ER16-2559-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Queue Position Z2-089/AA2-099, Original Service Agreement No. 4525 to be effective 8/8/2016.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5177.

    Comments Due: 5 p.m. ET 9/28/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 7, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22041 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM12-17-000; Docket No. RM01-5-000] Revisions to Procedural Regulations Governing Transportation by Intrastate Pipelines; Electronic Tariff Filings; Notice of Changes to Etariff Part 284 Type of Filing Codes

    As the Commission recently stated in Atmos Pipeline—Texas1 and Narragansett Electric Company, 2 all filings that invoke Part 284 of the Commission's regulations must be made via eTariff. Take notice that, effective November 7, 2016, the list of available eTariff Type of Filing Codes (TOFC) 3 will be modified as per the Appendix to this notice.4

    1 156 FERC ¶ 61,094 (2016). State Rate Certification filings should use TOFC 1360, or TOFC 1260 for the optional filing procedures under section 284.123(g).

    2 155 FERC ¶ 61,159 (2016). A Hinshaw pipeline filing a cost and throughput study should use TOFC 790, or TOFC 1370 for the optional filing procedures under section 284.123(g).

    3 The type of filing business process categories are described in the Implementation Guide for Electronic Filing of Parts 35, 154, 284, 300, and 341 Tariff Filings (August 12, 2013), found on the Commission's Web site, http://www.ferc.gov/docs-filing/etariff/implementation-guide.pdf.

    4 These TOFC were most recently modified in Order No. 781, effective September 30, 2013, which revised Part 284 to provide optional notice procedures. Revisions to Procedural Regulations Governing Transportation by Intrastate Pipelines, 144 FERC ¶ 61,034 (2013).

    For a more complete guide on filings under Natural Gas Policy Act of 1978 section 311 and Natural Gas Act section 1(c), see http://www.ferc.gov/industries/gas/gen-info/intrastate-trans.asp. For further information, contact James Sarikas, Office of Energy Market Regulation at (202) 502-6831 or [email protected].

    Dated: September 6, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-22016 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP11-2473-000.

    Applicants: Gulf South Pipeline Company, LP.

    Description: Report Filing: 2015 Cash Pool Filing.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5082.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP11-2474-000.

    Applicants: Gulf Crossing Pipeline Company LLC.

    Description: Report Filing: 2015 Cash Pool Filing.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5078.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1222-000.

    Applicants: Dominion Cove Point LNG, LP.

    Description: Compliance filing DCP—2016 Revenue Crediting Report.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5070.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1223-000.

    Applicants: Enable Gas Transmission, LLC.

    Description: § 4(d) Rate Filing: Negotiated Rate Filing—September 2016 CERC 1019 LER 8744 to be effective 9/1/2016.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5086.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1224-000.

    Applicants: Cimarron River Pipeline, LLC.

    Description: § 4(d) Rate Filing: Fuel Tracker 2016—Winter Season Rates to be effective 11/1/2016.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5133.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1225-000.

    Applicants: Columbia Gulf Transmission, LLC.

    Description: Annual Cash-Out Report of Columbia Gulf Transmission, LLC under RP16-1225.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5138.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1226-000.

    Applicants: ANR Pipeline Company.

    Description: § 4(d) Rate Filing: Vectren Energy Amendment to be effective 9/1/2016.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5182.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1227-000.

    Applicants: Natural Gas Pipeline Company of America.

    Description: § 4(d) Rate Filing: Madill Gas Processing to be effective 6/27/2016.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5236.

    Comments Due: 5 p.m. ET 9/13/16.

    Docket Numbers: RP16-1228-000.

    Applicants: Trailblazer Pipeline Company LLC.

    Description: § 4(d) Rate Filing: Order No. 587—Housekeeping to be effective 9/1/2016.

    Filed Date: 9/2/16.

    Accession Number: 20160902-5160.

    Comments Due: 5 p.m. ET 9/14/16.

    Docket Numbers: RP16-1229-000.

    Applicants: Rockies Express Pipeline LLC.

    Description: § 4(d) Rate Filing: Order No. 587-W, Housekeeping Filing to be effective 9/1/2016.

    Filed Date: 9/2/16.

    Accession Number: 20160902-5161.

    Comments Due: 5 p.m. ET 9/14/16.

    Docket Numbers: RP16-1230-000.

    Applicants: Tallgrass Interstate Gas Transmission, L.

    Description: § 4(d) Rate Filing: Order No. 587-W Housekeeping Filing to be effective 9/1/2016.

    Filed Date: 9/2/16.

    Accession Number: 20160902-5238.

    Comments Due: 5 p.m. ET 9/14/16.

    Docket Numbers: RP16-1231-000.

    Applicants: Kern River Gas Transmission Company.

    Description: § 4(d) Rate Filing: 2016 September Tenaska to be effective 9/7/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5300.

    Comments Due: 5 p.m. ET 9/19/16.

    Docket Numbers: RP16-1232-000.

    Applicants: Columbia Gas Transmission, LLC.

    Description: § 4(d) Rate Filing: Negotiated & Non-Conforming Service Agmt—Eclipse to be effective 10/1/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5301.

    Comments Due: 5 p.m. ET 9/19/16.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    Filings in Existing Proceedings

    Docket Numbers: RP16-440-005.

    Applicants: ANR Pipeline Company.

    Description: Compliance filing Compliance to RP16-440-004 to be effective 8/1/2016.

    Filed Date: 9/1/16.

    Accession Number: 20160901-5183.

    Comments Due: 5 p.m. ET 9/13/16.

    Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 7, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22043 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2541-000] Pioneer Wind Park I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of Pioneer Wind Park I, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 27, 2016.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 7, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22044 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER16-696-002.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2016-09-08_2nd Amendment to Attachment X Funding Options Filing to be effective 6/24/2015.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5195.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2293-002.

    Applicants: Drift Sand Wind Project, LLC.

    Description: Tariff Amendment: MBR Tariff to be effective 9/23/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5151.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2560-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Service Agreement No. 4529 and Notice of Cancellation to be effective 8/8/2016.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5202.

    Comments Due: 5 p.m. ET 9/28/16.

    Docket Numbers: ER16-2561-000.

    Applicants: Sunflower Wind Project, LLC.

    Description: Baseline eTariff Filing: MBR Application to be effective 10/15/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5177.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2562-000.

    Applicants: Nicolis, LLC.

    Description: § 205(d) Rate Filing: Amended and Restated CLGIA Co-Tenancy Agreement to be effective 9/6/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5185.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2563-000.

    Applicants: Nicolis, LLC.

    Description: § 205(d) Rate Filing: Shared Use Agreement Filing to be effective 9/6/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5191.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2564-000.

    Applicants: Tropico, LLC.

    Description: § 205(d) Rate Filing: Shared Use Agreement Filing to be effective 9/6/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5198.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2565-000.

    Applicants: Tropico, LLC.

    Description: § 205(d) Rate Filing: Amended and Restated CLGIA Co-Tenancy Agreement to be effective 9/6/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5199.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2566-000.

    Applicants: Dynegy Midwest Generation, LLC.

    Description: § 205(d) Rate Filing: Revised Rate Schedule to be effective 10/17/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5217.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2567-000.

    Applicants: Median Energy Corp.

    Description: Baseline eTariff Filing: MBR Application to be effective 11/8/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5243.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: ER16-2568-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: Letter Agreement ACES Project—WDT 1250EXP to be effective 9/9/2016.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5254.

    Comments Due: 5 p.m. ET 9/29/16.

    Take notice that the Commission received the following qualifying facility filings:

    Docket Numbers: QF15-792-000.

    Applicants: SunE M5B Holdings, LLC.

    Description: Refund Report of SunE M5B Holdings, LLC.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5232.

    Comments Due: 5 p.m. ET 9/28/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 8, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22042 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. OR16-25-000] Medallion Pipeline Company, LLC; Notice of Petition for Declaratory Order

    Take notice that on September 2, 2016, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2)(2016), Medallion Pipeline Company, LLC (Medallion) filed a petition for a declaratory order seeking approval of the overall rate and tariff structure for a proposed expansion of Medallion's crude oil pipeline system, which will extend the geographic reach of the Medallion pipeline system and provide shippers with flexibility and new outlets for production, all as more fully explained in the petition.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern time on September 30, 2016.

    Dated: September 7, 2016. Kimberly D. Bose, Secretary.
    [FR Doc. 2016-22013 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG16-145-000.

    Applicants: Cimarron Bend Wind Project II, LLC.

    Description: Self-Certification of EG or FC of Cimarron Bend Wind Project II, LLC.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5366.

    Comments Due: 5 p.m. ET 9/27/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER16-1912-001.

    Applicants: Southwest Power Pool, Inc.

    Description: Tariff Amendment: Deficiency Response in ER16-1912—Out-of-Merit Energy Clarification to be effective 7/1/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5419.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2285-001.

    Applicants: Desert Wind Farm LLC.

    Description: Tariff Amendment: Amendment to 1 to be effective 9/24/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5298.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2462-001.

    Applicants: Oregon Clean Energy, LLC.

    Description: Tariff Amendment: Amendment to Application for MBR to be effective 10/21/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5299.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2552-000.

    Applicants: Municipal Energy of PA, LLC.

    Description: Notice of Cancellation of Market-Based Rate Tariff of Municipal Energy of PA, LLC.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5316.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2553-000.

    Applicants: Avista Corporation.

    Description: § 205(d) Rate Filing: Avista Corp FERC Rate Schedule No. 184 extension to be effective 10/1/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5296.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2554-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2016-09-06_Order 809 True-up filing to be effective 11/5/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5297.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2555-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Queue Position X2-012/AA2-008, Service Agreement No. 3569 to be effective 8/4/2016.

    Filed Date: 9/6/16.

    Accession Number: 20160906-5369.

    Comments Due: 5 p.m. ET 9/27/16.

    Docket Numbers: ER16-2556-000.

    Applicants: Hinson Power Company, LLC.

    Description: Tariff Cancellation: Cancellation (Complete Tariff ID) to be effective 9/7/2016.

    Filed Date: 9/7/16.

    Accession Number: 20160907-5015.

    Comments Due: 5 p.m. ET 9/28/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 7, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22040 Filed 9-13-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9952-24-OA] Notification of a Teleconference of the Science Advisory Board Economy-Wide Modeling Panel AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public teleconference of the SAB Economy-Wide Modeling Panel.

    DATES:

    The public teleconference will be held on December 7, 2016 from 1:00 p.m. to 5:00 p.m. (Eastern Time).

    ADDRESSES:

    The teleconference will be held by telephone only.

    FOR FURTHER INFORMATION CONTACT:

    Any member of the public wishing further information regarding the public teleconference or public meeting may contact Dr. Holly Stallworth, Designated Federal Officer (DFO), SAB Staff Office, by telephone/voicemail at (202) 564-2073 or via email at [email protected]. General information concerning the EPA Science Advisory Board can be found at the EPA SAB Web site at http://epa.gov/sab.

    SUPPLEMENTARY INFORMATION:

    Background: The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDDAA) codified at 42 U.S.C. 4365, to provide independent scientific and technical peer review, advice, consultation, and recommendations to the EPA Administrator on the technical basis for EPA actions. As a Federal Advisory Committee, the SAB conducts business in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) and related regulations. Pursuant to FACA and EPA policy, notice is hereby given that the SAB Economy-Wide Modeling Panel will hold a public teleconference to discuss its draft responses on charge questions from EPA's National Center for Environmental Economics and the Office of Air and Radiation on economic analysis for air regulations at EPA.

    The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Background information on the SAB Economy-Wide Modeling Panel can be found at http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Economywide%20modeling?OpenDocument.

    Availability of the meeting materials: Agendas will be posted on the SAB Web site prior to the December 7, 2016 teleconference. To locate meeting materials, go to http://epa.gov/sab and click on the meeting date. The Economy-Wide Modeling Panel's draft report will be posted at this URL. EPA's review document(s), charge to the Panel and other background materials are also available at the URL above. For questions concerning EPA's review materials on economy-wide modeling, please contact Dr. Ann Wolverton, EPA National Center for Environmental Economics at [email protected] or 202-566-2278.

    Procedures for Providing Public Input: Public comment for consideration by EPA's federal advisory committees and panels has a different purpose from public comment provided to EPA program offices. Therefore, the process for submitting comments to a federal advisory committee is different from the process used to submit comments to an EPA program office. Federal advisory committees and panels, including scientific advisory committees, provide independent advice to the EPA. Members of the public can submit relevant comments on the topic of this advisory activity, including the charge to the panel and the EPA review documents, and/or the group conducting the activity, for the SAB to consider during the advisory process. Input from the public to the SAB will have the most impact if it consists of comments that provide specific scientific or technical information or analysis for the SAB panel to consider or if it relates to the clarity or accuracy of the technical information.

    Oral Statements: In general, individuals or groups requesting an oral presentation will be limited to three minutes per speaker for the teleconference. Interested parties should contact Dr. Holly Stallworth, DFO, in writing (preferably via email), at the contact information noted above, by November 30, 2016 to be placed on the list of public speakers for the teleconference. Written Statements: Written statements should be received in the SAB Staff Office by November 30, 2016 to be considered for the teleconference. Written statements should be supplied to the DFO, preferably in electronic format via email. It is the SAB Staff Office general policy to post written comments on the Web page for the advisory meeting or teleconference. Submitters are requested to provide an unsigned version of each document because the SAB Staff Office does not publish documents with signatures on its Web sites. Members of the public should be aware that their personal contact information, if included in any written comments, may be posted to the SAB Web site. Copyrighted material will not be posted without explicit permission of the copyright holder.

    Accessibility: For information on access or services for individuals with disabilities, please contact Dr. Stallworth at the phone number or email address noted above, preferably at least ten days prior to the meeting, to give EPA as much time as possible to process your request.

    Dated: September 6, 2016. Khanna Johnston, Acting Deputy Director, EPA Science Advisory Board Staff Office.
    [FR Doc. 2016-22093 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL RETIREMENT THRIFT INVESTMENT BOARD Sunshine Act; Notice of Meeting; Federal Retirement Thrift Investment Board Member Meeting, September 19, 2016 8:30 a.m. (In-Person), 77 K Street NE., Board Room 10th Floor, Washington, DC 20002 Agenda Open Session 1. Approval of the Minutes of the August 22, 2016 Board Member Meeting 2. Monthly Reports (a) Participant Activity Report (b) Investment Performance Report (c) Legislative Report 3. FY17 Budget Review and Approval 4. Vendor Financials 5. Blended Retirement Closed Session

    Information covered under 5 U.S.C. 552b(c)(4) and (c)(9)(B).

    Adjourn CONTACT PERSON FOR MORE INFORMATION:

    Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.

    Dated: September 8, 2016. Megan Grumbine, General Counsel.
    [FR Doc. 2016-21990 Filed 9-12-16; 4:15 pm] BILLING CODE 6760-01-P
    FEDERAL TRADE COMMISSION Agency Information Collection Activities; Submission for OMB Review; Comment Request AGENCY:

    Federal Trade Commission (“Commission” or “FTC”).

    ACTION:

    Notice.

    SUMMARY:

    The FTC plans to conduct a qualitative survey of consumers who recently purchased an automobile and financed that purchase through a dealer. Through a survey research firm, the FTC seeks to interview consumers about the consumers' experience in selecting, purchasing, and financing an automobile from a dealer. The interviews also will involve reviewing the consumer's documentation from the purchase and financing. This is the second of two notices required under the Paperwork Reduction Act (“PRA”) in which the FTC seeks public comments on its proposed consumer research. The proposed information collection described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the PRA.

    DATES:

    Comments must be received on or before October 14, 2016.

    ADDRESSES:

    Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “Auto Buyer Consumer Survey, Project No. P154800” on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/autobuyersurveypra2, by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Carole Reynolds, 202-326-3230, or Teresa Kosmidis, 202-326-3216, Division of Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Mail Stop-CC-10232, Washington, DC 20580.

    SUPPLEMENTARY INFORMATION:

    I. Background

    For many consumers, aside from housing costs, a car purchase is their most expensive financial transaction. With prices averaging more than $34,000 for a new vehicle and $20,000 for a used vehicle from a dealer, most consumers seek to finance the purchase of a new or used car.1 Consumers may seek financing from their local bank or credit union, as well as from the dealer selling the vehicle. Financing obtained at the dealership, whether it is provided by a third party or directly by the dealer, may provide benefits for many consumers, such as convenience, special manufacturer-sponsored programs, access to a variety of banks and financial entities, or access to credit otherwise unavailable to a buyer. Financing that is offered or arranged by dealers, however, can be a complicated, opaque process and potentially involve unfair or deceptive practices.2

    1 As of December 2015, the average price of a new car sold in the U.S. was $34,428, according to Kelley Blue Book. See Kelley Blue Book, Record New-Car Transaction Prices Reported In December 2015, According to Kelley Blue Book (Jan. 5, 2016), available at http://mediaroom.kbb.com/record-new-car-transaction-prices-reported-december-2015. The average price of a used car is $20,057. See Used Car Prices Hold Up in Strong New-Vehicle Market), J.D. Power (Sept. 8, 2015), available at http://www.jdpower.com/cars/articles/used-cars/used-car-prices-hold-strong-new-vehicle-market. Used cars available from independent dealers and from “buy here pay here” dealers have been lower in price. For example, in 2014, over 42% of cars were sold at an average sales price of $5,000-$10,000 at independent dealers; the average cost of cars was $7,150 at “buy here pay here” dealers. See 2015 NIADA Used Car Industry Report, at 6 and 16, respectively, available at http://www.niada.com/publications.php.

    2See infra notes 7-9 and accompanying text.

    As the nation's longstanding consumer protection agency, the Commission is committed to protecting consumers in connection with auto-related transactions. The Commission has broad authority to protect consumers in this area. The agency enforces the FTC Act, which prohibits unfair and deceptive practices by a wide variety of entities, including automobile dealers.3 Also pursuant to the Dodd-Frank Act,4 the FTC is authorized to prescribe rules under Section 553 of the Administrative Procedure Act (“APA”) 5 with respect to unfair or deceptive acts or practices by motor vehicle dealers.6

    3 15 U.S.C. 45(a). The Commission also has enforcement authority over automobile dealers under various other statutes, including, for example, the Truth in Lending Act, 15 U.S.C. 1601-1666j, and its implementing Regulation Z, 12 CFR 226, 12 CFR 1026; the Consumer Leasing Act, 15 U.S.C. 1667-1667f, and its implementing Regulation M, 12 CFR 213, 12 CFR 1013; the Equal Credit Opportunity Act (ECOA), 15 U.S.C. 1691-1691f, and its implementing Regulation B, 12 CFR 202, 12 CFR 1002; the Electronic Fund Transfer Act, 15 U.S.C. 1693-1693r, and its implementing Regulation E, 12 CFR 205, 12 CFR 1005; and the privacy and safeguard provisions of the Gramm-Leach Bliley Act, 15 U.S.C. 6801-6809, and related privacy rule, 16 CFR 313, and safeguards rule, 16 CFR 314.

    4 Dodd-Frank Wall Street Reform and Consumer Protection Act § 1029, 12 U.S.C. 5519.

    5 5 U.S.C. 553.

    6See Dodd-Frank Act § 1029(d), 12 U.S.C. 5519(d). Under the Dodd-Frank Act, the term “motor vehicle dealer” refers to “any person or resident in the United States, or any territory of the United States, who (A) is licensed by a State, a territory of the United States, or the District of Columbia to engage in the sale of motor vehicles; and (B) takes title to, holds an ownership in, or takes physical custody of motor vehicles.” Id. at 1029(f)(2), 12 U.S.C. 5519(f)(2). The term “motor vehicle” includes, among other things, motorcycles, motor homes, recreational vehicle trailers, recreational boats and marine equipment, and other vehicles titled and sold through dealers. See id. at 1029(f)(1), 12 U.S.C. 5519(f)(1).

    In recent years, the FTC has been particularly active in enforcement and other initiatives related to automobile transactions. Since 2011, the FTC has brought more than 25 cases protecting consumers in this area, including a sweep of ten actions against automobile dealers for deceptive advertising, and a coordinated federal-state effort that yielded more than two hundred automobile actions for fraud, deception, and other illegal practices.7 In 2011, the FTC conducted three automobile “roundtables” around the country, where panelists from government, consumer advocacy groups, and industry discussed consumer protection issues related to sales, financing, and leasing practices involving automobiles; the Commission also sought and received public comments on these issues.8 Additionally, the FTC has produced many consumer education and business education materials related to automobile purchasing and financing.9

    7See Press Releases, FTC Announces Sweep Against 10 Auto Dealers (Jan. 9, 2014), available at http://www.ftc.gov/news-events/press-releases/2014/01/ftc-announces-sweep-against-10-auto-dealers; FTC Approves Final Consent Orders in Deceptive Auto Dealers' Ad Cases (May 6, 2014), available at http://www.ftc.gov/news-events/press-releases/2014/05/ftc-approves-final-consent-orders-deceptive-auto-dealers-ads and FTC, Multiple Law Enforcement Partners Announce Crackdown on Deception, Fraud in Auto Sales, Financing and Leasing (Mar. 26, 2015), available at https://www.ftc.gov/news-events/press-releases/2015/03/ftc-multiple-law-enforcement-partners-announce-crackdown. See also https://www.ftc.gov/news-events/media-resources/consumer-finance/auto-marketplace.

    8See Press Release, FTC Continues To Seek Public Input On Consumer Issues in Motor Vehicle Sales, Financing and Leasing, available at http://www.ftc.gov/news-events/press-releases/2012/02/ftc-continues-seek-public-input-consumer-issues-motor-vehicle. See also Public Comments, #369: FTC Roundtables Will Address Consumer Issues in Motor Vehicle Financing and Leasing; FTC File No. P104811, available at https://www.ftc.gov/policy/public-comments/initiative-369.

    9See, e.g., Understanding Vehicle Financing (revised January 2014), produced in cooperation with the American Financial Services Education Foundation and the National Automobile Dealers Association, available at http://www.consumer.ftc.gov/articles/0056-understanding-vehicle-financing; Lesley Fair, FTC, Operation Ruse Control: 6 tips if cars are up your alley (Mar. 26, 2015), available at https://www.ftc.gov/news-events/blogs/business-blog/2015/03/operation-ruse-control-6-tips-if-cars-are-your-alley; Colleen Tressler, FTC, Check out the auto dealer and financing before you sign (Oct. 31, 2014), available at http://www.consumer.ftc.gov/blog/check-out-auto-dealer-and-financing-you-sign.

    The FTC's proposed survey will explore in more detail the experience of actual consumers who recently purchased and financed an automobile from a dealer.10 The survey is intended to inform the Commission about current consumer protection issues that may exist and that could be addressed through FTC action, including enforcement initiatives, rulemaking, or education.

    10 For purposes of this survey, “automobile” refers to cars, minivans, SUVs, and light trucks—all of which consumers commonly purchase and finance through automobile dealers. Depending on the consumers who participate in the survey, the dealers could potentially include: (1) Franchise dealers (e.g., that have franchises with automobile manufacturers and may offer consumers financing that is assigned to “captive” finance companies—subsidiaries owed by the manufacturers—or to other finance entities); (2) independent dealers (e.g., that do not have franchises with automobile manufacturers and may offer consumers financing that is assigned to finance entities that are not subsidiaries owned by the manufacturers but that may be an entity related to or associated with the dealer); and (3) “buy here pay here” dealers (e.g., a type of independent dealer that offers consumers in-house financing that the dealers usually retain, although some larger dealers may assign the financing to “buy here pay here” finance entities.

    II. The FTC's Proposed Study A. Study Description

    The FTC plans to conduct a qualitative survey of consumer experiences in recent purchases of automobiles that were financed through automobile dealers. The survey will involve an initial sample of five in-person consumer interviews to test the survey questionnaire, followed by in-person interviews of 40 consumers, with the option to interview 40 more, if the FTC deems the additional interviews likely to be helpful. For the initial 40 consumers, the FTC seeks to interview approximately 20 consumers who have “prime” or “above subprime” credit scores and approximately 20 consumers who have “subprime” credit scores in order to learn about the consumer's experience with purchasing and financing in these two market segments.11 Generally, the sample group of consumers will be racially diverse and will include participants of both sexes. The contractor also generally will strive to obtain a mix of ages and income levels, as well as a mix of consumers who purchased and financed a vehicle from franchise, independent, and buy here pay here dealers. The FTC has contracted with Shugoll Research, Inc. (“Shugoll”), a consumer research firm located in metropolitan Washington, DC, with substantial experience conducting consumer surveys, to locate the participants, conduct the survey, and write a brief methodological report and any other report if requested by the FTC. Shugoll will select the consumers from a pool of people who previously have indicated that they are willing to participate in surveys but who have not participated in any in-depth survey interviews in the past year. Shugoll will identify interview participants who have purchased an automobile, from a dealer in the greater Washington, DC metropolitan area, in the previous six months, and used financing offered or arranged by the dealer to make the purchase. The participants also must have kept the documentation (e.g., credit contract) he or she received as part of the purchase and financing.12 The consumer's credit score will be used in the survey; if survey participants do not have their credit score, the consumer may obtain it through services that provide this information and provide documentation of the score to Shugoll.13 The interview participants and their personal identifying information will be anonymized in material received by the FTC, and will be vigorously protected by the survey firm.14

    11 For example, Experian categorizes consumers with scores below 601 as subprime. Other scores are above subprime, and categorized as nonprime or prime. See generally Experian, State of the Automotive Finance Market, A look at loans and leases in Q1 2016, available at http://www.experian.com/automotive/automotive-credit-webinar.html.

    12 In addition, two other screening criteria apply: (1) Consumers and immediate family must not work in advertising, public relations, or market research, nor in the automobile industry or a finance company; and (2) consumers must be able and willing to provide answers that can be clearly understood in English.

    13 For privacy purposes, Shugoll will not obtain the credit score for the consumer, but will explain to consumers who do not have their score that various sources are available for promptly obtaining this information, including some that do not charge.

    14 Shugoll will set up two secure databases for maintaining information about potential and selected survey participants. The firm will assign each consumer a random identification number (“random ID number”), and that information along with the consumer's identifying information will be maintained by the contractor in one database. The FTC will only have access to a second database that will include the random ID number with anonymized information about the consumers and redacted information regarding the consumers' purchase and finance documents. Thus, only redacted copies of consumer identifiers in purchase and finance documents will be maintained in the survey. The survey will utilize rigorous protections for privacy and security of consumer information.

    Shugoll will conduct interviews lasting approximately 90 minutes with each consumer. The interviews will focus on, among other things:

    • The consumer's experience in shopping for and choosing an automobile;

    • the process of agreeing to a price for the automobile;

    • the process of trading in the consumer's used automobile, if applicable;

    • the consumer's experience in obtaining financing, and discussion of any GPS or tracking device installed in connection with the financing; 15

    15 This interview topic now clarifies that discussion of any GPS or tracking devices could be included if part of the consumer's experience.

    • additional products or services the dealer may have offered;

    • contracts and post-purchase experience, such as that related to review and signing of paperwork;

    • other points raised by the consumer about the process; 16 and

    16 The interview topics now clarify that the survey will consider other points that the consumer may raise about the process.

    • the consumer's overall perception of the purchase experience.

    The interviews will conclude by reviewing the consumer's documentation and exploring the consumer's understanding of that documentation. The walk-through of the consumer's documents will include: 17

    17 The FTC staff has included the topics for the walk-through of the consumer's documents. The documents that the consumer may have for the purchase and financing could vary among consumers who participate.

    • The consumer's overall understanding of the documents;

    • a review of the available documents;

    • a review of the terms of the deal;

    • the consumer's views of the documents and terms;

    • discussion of any other documents; and

    • other points raised by the consumer about the documents.

    Participation in the survey will be voluntary. While the results will not be generalizable to the U.S. population, the Commission believes that they can provide useful insights into consumer experiences and understanding of the automobile purchasing and financing process at the dealership. B. PRA Burden Analysis

    In its January 7, 2016 Notice,18 the FTC provided PRA burden estimates for the proposed research. Staff believes that these estimates generally remain applicable and appropriate for the survey; however, as noted below, staff has adjusted certain aspects of the estimates after consultation with the contractor for the study.

    18 81 FR 780.

    A. Estimated number of respondents: 170.

    B. Burden Hours: 367 hours.19

    19 This is a total increase of 16 hours from the prior estimate.

    C. Labor Costs: Negligible.

    More specifically, staff estimates that the contractor's preliminary review of consumers to select for the survey would involve no more than 170 consumers (at most twice the maximum number of consumers—85—that would be involved in the survey).20

    20 As described below, the contractor also would have 19 additional consumers (backups) on site as possible replacements for pretest and regular survey consumers who do not show-up for the interview. These consumers would add certain costs for time related to various aspects of the survey as indicated in the text, but they would not add to the total number of consumers participating in the survey interviews. Also, the 170 consumers include the additional maximum 19 pretest and regular survey backups.

    The estimated hours are a total of the time for preliminary review, the pretest, the interviews, and obtaining credit scores. The preliminary review will include topics such as whether the consumer has recently purchased a car and has participated in a survey in the past year, as well as the consumer's self-identified race and origin. This review, done by phone, could require no more than 12 minutes per consumer, for 34 hours (170 respondents × 12 minutes).21 Staff also estimates that at most, each of the 170 consumers would take approximately 30 minutes to locate or ascertain whether they have their documentation and their credit score for the survey, for 85 hours. Thus, the preliminary review total would be 119 hours.

    21 The FTC has reduced its estimate of needed preliminary review time from 15 minutes to 12 minutes (a 3-minute reduction for each consumer), based on the contractor's current estimate.

    Staff will pretest the questionnaire and interview materials with approximately five respondents to ensure that questions are easily understood. Based on further FTC staff discussions with the contractor, the survey will involve three additional backup consumers to be available in the event that any of the five scheduled respondents do not show up for the pretest. Staff estimates that each interview (including the documentation review) will take approximately 90 minutes, and 60 minutes travel time to and from the survey. Allowing for an extra ten minutes for questions unique to the pretest, the pretest will total approximately 19 hours (5 respondents × 160 minutes each for the pretest, plus 3 backups × 60 minutes travel time per backup, plus 2 (of the 3) backups × 100 minutes of maximum wait time per backup).22

    22 After consultation with the contractor, the FTC has slightly increased its estimates of pretest time to account for the backups in the pretest, who are replacements for possible no-show consumers in the pretest. As noted above, three backups will experience travel time to and from the survey, of 60 minutes each, for a total of 180 additional minutes or three hours. Also, two of the backups would be available on site for approximately 200 minutes (each backup would be available to replace two consumers), and one of the backups would be available on site for approximately 100 minutes (to replace one consumer). Thus, the backups might experience replacement time for no-show consumers, which would not add participation time to the survey. However, if fewer consumers are no-shows, it is possible that a maximum of 100 minutes in participation time would apply for each of the two backups—a total of 200 minutes—while they wait to learn if they are needed for the next pretest segment after the initial pretest segment. As noted, the other time for the backups—100 minutes for each of the two backups, and 100 minutes for one backup—would be as replacement for scheduled pretests or, if the backups are not needed, they would be released promptly at the beginning of the sessions; neither would add participation time.

    Once the pretest is completed, the initial 40 interviews, including travel, will cumulatively total an estimated 108 hours: 60 hours for the interviews (i.e., 40 interviews at 90 minutes each) plus 40 hours travel time to and from the interview facility for the 40 participants, cumulatively, plus eight additional hours, cumulatively, for eight additional participants' travel time to and from the interview facility as potential replacements for possible no-show participants.23 If an additional 40 consumers are interviewed,24 that will require an additional 108 hours, for the same reasons as above. Thus, for the interviews of 80 consumers, including travel time for 16 backup consumers, staff estimates that 216 hours will be required (80 respondents × 150 minutes each plus 16 backup consumers × 60 minutes each).25

    23 As noted, the survey will involve consumers from the greater Washington, DC metropolitan area.

    24 The survey plan has an option for an additional 40 consumers, for a maximum of 80 consumers.

    25 The FTC has slightly increased its estimates of time for the regular interviews, to account for the possibility that backup consumers may be needed as replacements for no-show consumers. These eight additional consumers will experience travel time of 60 minutes each. They will not generate additional participation time: if they participate, they will replace the no-show participants; if not needed, they will be released promptly.

    Staff further estimates that approximately 75%, or 78, of the 85 survey participants and 19 backups who are potential participants (three pretest backups and 16 interview backups), for both pretest and interviews, do not already have their credit score and thus will procure it through the services that provide this information. Staff estimates that ten minutes per consumer will be required for this purpose, for a total of 13 hours (78 respondents × 10 minutes each).26

    26 The FTC has slightly increased its estimates for consumers to obtain credit scores, to account for the possibility that backups may participate and may not already have their credit scores.

    Thus, the FTC's survey will require 367 hours (119 hours for preliminary review + 19 hours for pretest + 216 hours for interviews + 13 hours for obtaining credit scores). The monetary cost per respondent should be negligible. The consumers who participate will already have or will obtain their credit score and provide documentation of that information to Shugoll.27 Costs to obtain their credit score should be nil or negligible. Increasingly, Web sites offer free credit scores; additionally, credit score information often is available to consumers through credit sources they already have access to, such as credit card or other credit statements, in some cases.

    27 After consultation with the contractor, the FTC now plans to have consumers who do not already have their credit score obtain it before their interview with the contractor; the contractor will advise consumers of this approach during screening for the survey, which is voluntary. Consumers who do not have, or do not wish to obtain, their credit score will not participate in the survey. This approach will limit provision of unnecessary personal information to the contractor, and will facilitate the survey process, by avoiding delaying the pretest and/or regular interviews for the consumer to obtain his or her credit score information if the consumer does not have it.

    Shugoll will pay respondents (including regular participants and backups) a reasonable and customary financial incentive for participation.28 Participation will not require start up, capital, or labor expenditures by interview participants.

    28 Shugoll also will pay regular participants' and backups' parking costs at the interview facility, which will be in Bethesda, Maryland and/or Alexandria, Virginia.

    III. Analysis of Comments

    In response to the January 7, 2016 Notice, the Commission received 17 germane comments regarding the proposed collection of information.29

    29 The Co