Federal Register Vol. 81, No.179,

Federal Register Volume 81, Issue 179 (September 15, 2016)

Page Range63361-63670
FR Document

81_FR_179
Current View
Page and SubjectPDF
81 FR 63571 - Culturally Significant Object Imported for Exhibition Determinations: “Lives Bound Together: Slavery at George Washington's Mount Vernon” ExhibitionPDF
81 FR 63475 - Request for Public Comment on the Draft Report Entitled Designing a Consent-Based Siting Process: Summary of Public InputPDF
81 FR 63482 - Sunshine Act MeetingPDF
81 FR 63448 - Approval and Promulgation of Implementation Plans; New York Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review; Infrastructure State Implementation Plan RequirementsPDF
81 FR 63480 - Public Water System Supervision Program Revision for the State of New MexicoPDF
81 FR 63471 - Privacy Act of 1974; System of RecordsPDF
81 FR 63498 - NASA Advisory Council; Human Exploration and Operations Committee; Research Subcommittee; MeetingPDF
81 FR 63498 - NASA Aerospace Safety Advisory Panel; MeetingPDF
81 FR 63486 - Notice of Opportunity for Public Comment on the Office of Dietary Supplements Draft 2016-2021 Strategic PlanPDF
81 FR 63503 - In the Matter of Duke Energy Florida, Inc., and Seminole Electric Cooperative, Inc., Crystal River Unit 3 Nuclear Generating PlantPDF
81 FR 63479 - Notification of a Closed Teleconference of the Chartered Science Advisory BoardPDF
81 FR 63494 - Truck and Bus Tires From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
81 FR 63500 - James A. FitzPatrick Nuclear Power Plant; Consideration of Approval of Transfer of License and Conforming AmendmentPDF
81 FR 63418 - Safety Zone; Navy UNDET, Apra Outer Harbor, GUPDF
81 FR 63437 - Special Local Regulation; San Diego Sharkfest Swim; San Diego Bay, CAPDF
81 FR 63469 - Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of the Second Five-Year Sunset Review of the Antidumping Duty OrderPDF
81 FR 63492 - Proposed Information Collection; Natural Sounds/Quiet Valuation SurveyPDF
81 FR 63489 - Notice of Public Listening Session: Heavy Fuel Oil in the ArcticPDF
81 FR 63478 - National Environmental Justice Advisory Council; Notice of Charter RenewalPDF
81 FR 63491 - Homeland Security Science and Technology Advisory CommitteePDF
81 FR 63500 - Committee on Equal Opportunities in Science and Engineering Notice of MeetingPDF
81 FR 63572 - Nineteenth Meeting of the NextGen Advisory Committee (NAC)PDF
81 FR 63507 - New Postal ProductsPDF
81 FR 63478 - Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Notice of Posting of Staff's Technical Workshop NotesPDF
81 FR 63476 - Median Energy Corp.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 63476 - Sunflower Wind Project, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 63478 - SunE M5B Holdings, LLC; SunE M5B Holdings, LLC; Notice of Petiton for Declaratory OrderPDF
81 FR 63476 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
81 FR 63477 - Combined Notice of Filings #2PDF
81 FR 63475 - Combined Notice of Filings #1PDF
81 FR 63416 - Special Local Regulation; Atchafalaya River, Morgan City, LAPDF
81 FR 63471 - Agency Information Collection Activities Under OMB ReviewPDF
81 FR 63435 - Disposal of Consumer Report Information and RecordsPDF
81 FR 63468 - Agenda and Notice of Public Meeting of the West Virginia Advisory CommitteePDF
81 FR 63468 - Agenda and Notice of Public Meeting of the Delaware Advisory CommitteePDF
81 FR 63480 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 63481 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
81 FR 63485 - Advisory Commission on Childhood VaccinesPDF
81 FR 63499 - Meetings of Humanities PanelPDF
81 FR 63493 - Notice of Proposed Information Collection; Request for Comments for 1029-0116PDF
81 FR 63467 - Pike/San Isabel National Forests; Colorado; Pike/San Isabel National Forests Travel Management PlanPDF
81 FR 63470 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Data Scoping Webinar for South Atlantic Red GrouperPDF
81 FR 63492 - Notice of Public Meeting; Central Montana Resource Advisory CouncilPDF
81 FR 63467 - Bridger-Teton Resource Advisory CommitteePDF
81 FR 63572 - Proposed Collection of Information: TreasuryDirect Customer FeedbackPDF
81 FR 63414 - Allocation of Assets in Single-Employer Plans; Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying BenefitsPDF
81 FR 63496 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 63560 - Submission for OMB Review; Comment RequestPDF
81 FR 63561 - Submission for OMB Review; Comment RequestPDF
81 FR 63497 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Youthful Offender Grants Management Information SystemPDF
81 FR 63454 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Chorizanthe parryi var. fernandina (San Fernando Valley Spineflower)PDF
81 FR 63486 - National Institute of Mental Health; Notice of Closed MeetingsPDF
81 FR 63488 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 63486 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 63445 - Changes to Attributable CostingPDF
81 FR 63506 - Information Collection Request; Submission for OMB ReviewPDF
81 FR 63505 - Information Collection Request; Submission for OMB ReviewPDF
81 FR 63504 - Information Collection Request Submission for OMB ReviewPDF
81 FR 63543 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change Amending NYSE Arca Equities Rules 2.16(c) and 2.21(i) Regarding the Timing for Submission of a Uniform Termination Notice for Securities Industry Registration (“Form U5”) by an ETP HolderPDF
81 FR 63511 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Proposed Rule Change To Describe the Backtesting Charge and the Bank Holiday Charge That May Be Imposed on MembersPDF
81 FR 63538 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of Proposed Rule Change To Describe the Backtesting Charge and the Holiday Charge That May Be Imposed on MembersPDF
81 FR 63523 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order Approving Proposed Rule Change To Modify the Complimentary Services Offered to Certain New ListingsPDF
81 FR 63536 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving a Proposed Rule Change Amending the Ninth Amended and Restated Operating Agreement of the ExchangePDF
81 FR 63543 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings to Determine Whether To Approve or Disapprove Proposed Rule Change, as Modified by Amendment No. 1, Relating to Amendments to NYSE MKT Rules 1600 et seq. and the Listing Rules Applicable to the Shares of the Nuveen Diversified Commodity Fund and the Nuveen Long/Short Commodity Total Return FundPDF
81 FR 63552 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending Rule 67-Equities Relating to the Tick Size Pilot ProgramPDF
81 FR 63515 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending Rule 67 Relating to the Tick Size Pilot ProgramPDF
81 FR 63525 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending Rule 7.46 Relating to the Tick Size Pilot ProgramPDF
81 FR 63565 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rule 6191 Relating to the Data Collection Requirements of the Regulation NMS Plan To Implement A Tick Size Pilot ProgramPDF
81 FR 63549 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.21(b) Regarding the Data Collection Requirements of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 63532 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.22(b) Regarding the Data Collection Requirements of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 63561 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.27(b) Regarding the Data Collection Requirements of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 63508 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.27(b) Regarding the Data Collection Requirements of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 63494 - Narrow Woven Ribbons With Woven Selvedge From China and TaiwanPDF
81 FR 63495 - Biaxial Integral Geogrid Products From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
81 FR 63507 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 63508 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 63508 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 63573 - Proposed Collection; Comment Request for Information Collection ToolsPDF
81 FR 63573 - Proposed Collection; Comment Request for Form 8328PDF
81 FR 63574 - Proposed Collection; Comment Request for Form 1097-BTCPDF
81 FR 63482 - A Performance Test Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous DrugsPDF
81 FR 63489 - Towing Safety Advisory Committee; October 2016 MeetingPDF
81 FR 63488 - CARA Act's Required Training of Nurse Practitioners and Physician AssistantsPDF
81 FR 63490 - FEMA National Advisory Council (NAC)-Integrated Public Alert and Warning System (IPAWS) SubcommitteePDF
81 FR 63541 - Foreside Advisor Services, LLC, et al.; Notice of ApplicationPDF
81 FR 63547 - Dhandho ETF Trust and Dhandho Funds LLC; Notice of ApplicationPDF
81 FR 63478 - Children's Health Protection Advisory CommitteePDF
81 FR 63506 - New Postal ProductsPDF
81 FR 63568 - California Disaster #CA-00254PDF
81 FR 63569 - Louisiana Disaster Number LA-00065PDF
81 FR 63571 - Louisiana Disaster Number LA-00065PDF
81 FR 63571 - Louisiana Disaster Number LA-00066PDF
81 FR 63570 - Louisiana Disaster Number LA-00066PDF
81 FR 63570 - California Disaster #CA-00253PDF
81 FR 63570 - Indiana Disaster #IN-00058PDF
81 FR 63569 - Oklahoma Disaster Number OK-00105PDF
81 FR 63569 - California Disaster #CA-00252PDF
81 FR 63568 - Iowa Disaster #IA-00066PDF
81 FR 63365 - Releasing Information; Availability of Records of the Farm Credit Administration; FOIA FeesPDF
81 FR 63433 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 63420 - Requirements for Vessels With Registry Endorsements or Foreign-Flagged Vessels That Perform Certain Aquaculture Support OperationsPDF
81 FR 63469 - Foreign-Trade Zone (FTZ) 46G-Cincinnati, Ohio, Notification of Proposed Production Activity, Givaudan Flavors Corporation, (Flavor Products), Cincinnati, OhioPDF
81 FR 63474 - Meeting of the Chief of Engineers Environmental Advisory BoardPDF
81 FR 63376 - Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap ParticipantsPDF
81 FR 63428 - Industrial and Commercial MetalsPDF
81 FR 63440 - Removal of Personally Identifiable Information From Registration RecordsPDF
81 FR 63634 - Energy Labeling RulePDF
81 FR 63664 - Disclosure of Written Consumer Product Warranty Terms and Conditions; Pre-Sale Availability of Written Warranty TermsPDF
81 FR 63396 - Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Seaman's Protection Act, as AmendedPDF
81 FR 63484 - Supplement to National Technical Resource Center for the Newborn Hearing Screening and Intervention Program at the Utah State UniversityPDF
81 FR 63374 - Airworthiness Directives; Agusta S.p.A. HelicoptersPDF
81 FR 63576 - Revision of Import and Export Requirements for Controlled Substances, Listed Chemicals, and Tableting and Encapsulating Machines, Including Changes To Implement the International Trade Data System; Revision of Reporting Requirements for Domestic Transactions in Listed Chemicals and Tableting and Encapsulating Machines; and Technical AmendmentsPDF
81 FR 63366 - Disaster Assistance Loan Program; Disaster Loan Credit and Collateral RequirementsPDF
81 FR 63361 - Testimony by FLRA Employees and Production of Official Records in Legal ProceedingsPDF
81 FR 63367 - Airworthiness Directives; ATR-GIE Avions de Transport Régional AirplanesPDF
81 FR 63370 - Airworthiness Directives; Airbus AirplanesPDF

Issue

81 179 Thursday, September 15, 2016 Contents Agriculture Agriculture Department See

Forest Service

Fiscal Bureau of the Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: TreasuryDirect Customer Feedback, 63572-63573 2016-22175 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Performance Test Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous Drugs, 63482-63484 2016-22132 Civil Rights Civil Rights Commission NOTICES Meetings: Delaware State Advisory Committee, 63468 2016-22196 West Virginia Advisory Committee, 63468-63469 2016-22197 Coast Guard Coast Guard RULES Requirements for Vessels with Registry Endorsements or Foreign-Flagged Vessels that Perform Certain Aquaculture Support Operations, 63420-63427 2016-22097 Safety Zones: Navy UNDET, Apra Outer Harbor, GU, 63418-63420 2016-22228 Special Local Regulations: Atchafalaya River, Morgan City, LA, 63416-63418 2016-22200 PROPOSED RULES Special Local Regulations: San Diego Sharkfest Swim, San Diego Bay, CA, 63437-63440 2016-22227 NOTICES Meetings: Heavy Fuel Oil in the Arctic, 63489-63490 2016-22222 Towing Safety Advisory Committee, 63489 2016-22131 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission RULES Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 63376-63395 2016-22045 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63471 2016-22199 Comptroller Comptroller of the Currency PROPOSED RULES Industrial and Commercial Metals, 63428-63433 2016-22017 Copyright Office Copyright Office, Library of Congress PROPOSED RULES Removal of Personally Identifiable Information from Registration Records, 63440-63445 2016-22011 Defense Department Defense Department See

Engineers Corps

NOTICES Privacy Act; Systems of Records, 63471-63474 2016-22236
Drug Drug Enforcement Administration PROPOSED RULES Requirements for Import, Export, and Reporting Domestic Transactions: Controlled Substances, Listed Chemicals, and Tableting and Encapsulating Machines, 63576-63631 2016-21589 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Designing a Consent-Based Siting Process, 63475 2016-22312
Engineers Engineers Corps NOTICES Meetings: Chief of Engineers Environmental Advisory Board, 63474-63475 2016-22062 Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: New York; Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review, 63448-63454 2016-22238 NOTICES Charter Renewals: National Environmental Justice Advisory Council, 63478 2016-22220 Meetings: Chartered Science Advisory Board; Closed Teleconference, 63479-63480 2016-22231 Public Water System Supervision Program Revision for New Mexico, 63480 2016-22237 Requests for Nominations: Children's Health Protection Advisory Committee, 63478-63479 2016-22124 Farm Credit Farm Credit Administration RULES Releasing Information: Availability of Records; FOIA Fees, 63365-63366 2016-22107 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Agusta S.p.A. Helicopters, 63374-63376 2016-21707 Airbus Airplanes, 63370-63374 2016-21146 ATR—GIE Avions de Transport Regional Airplanes, 63367-63370 2016-21292 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 63433-63435 2016-22101 NOTICES Meetings: NextGen Advisory Committee, 63572 2016-22209 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63480-63482 2016-22194 2016-22195 Federal Emergency Federal Emergency Management Agency NOTICES Requests for Nominations: FEMA National Advisory Council-Integrated Public Alert and Warning System Subcommittee, 63490-63491 2016-22127 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 63475-63477 2016-22201 2016-22202 Effectiveness of Exempt Wholesale Generator Status: Tyler Bluff Wind Project, LLC; Kelly Creek Wind, LLC; Great Western Wind Energy, LLC; et al., 63476 2016-22203 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Median Energy Corp., 63476-63477 2016-22206 Sunflower Wind Project, LLC, 63476 2016-22205 Petitions for Declaratory Orders: SunE M5B Holdings, LLC, 63478 2016-22204 Workshop Notes: Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, 63478 2016-22207 Federal Labor Federal Labor Relations Authority RULES Testimony by FLRA Employees and Production of Official Records in Legal Proceedings, 63361-63365 2016-21427 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 63482 2016-22299 Federal Trade Federal Trade Commission RULES Disclosure of Written Consumer Product Warranty Terms and Conditions; Pre-Sale Availability of Written Warranty Terms, 63664-63670 2016-21853 Energy Labeling Rule, 63634-63661 2016-21854 PROPOSED RULES Disposal of Consumer Report Information and Records, 63435-63437 2016-22198 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Threatened Species Status for Chorizanthe parryi var. fernandina (San Fernando Valley Spineflower), 63454-63466 2016-22167 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Givaudan Flavors Corp. (Flavor Products), Foreign-Trade Zone 46G, Cincinnati, OH, 63469 2016-22095 Forest Forest Service NOTICES Meetings: Bridger-Teton Resource Advisory Committee, 63467 2016-22176 Travel Management Plans: Pike/San Isabel National Forests, 63467-63468 2016-22185 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Health Resources and Services Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Commission on Childhood Vaccines, 63485-63486 2016-22193 Supplemental Funding: National Technical Resource Center for Newborn Hearing Screening and Intervention Program at Utah State University, 63484-63485 2016-21711 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

NOTICES Meetings: Science and Technology Advisory Committee, 63491-63492 2016-22214
Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Surface Mining Reclamation and Enforcement Office

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63573-63574 2016-22133 2016-22134 2016-22135 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Frozen Warmwater Shrimp from Socialist Republic of Vietnam, 63469-63470 2016-22224 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Truck and Bus Tires from China, 63494-63495 2016-22230 Investigations; Determinations, Modifications, and Rulings, etc.: Biaxial Integral Geogrid Products from China, 63495-63496 2016-22143 Narrow Woven Ribbons with Woven Selvedge from China and Taiwan, 63494 2016-22144 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Proposed Consent Decrees: United States and State of Ohio v. Rutgers Organics Corp., 63496-63497 2016-22171
Labor Department Labor Department See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Youthful Offender Grants Management Information System, 63497-63498 2016-22168
Land Land Management Bureau NOTICES Meetings: Central Montana Resource Advisory Council, 63492 2016-22180 Library Library of Congress See

Copyright Office, Library of Congress

NASA National Aeronautics and Space Administration NOTICES Meetings: NASA Advisory Council; Human Exploration and Operations Committee; Research Subcommittee, 63498 2016-22235 NASA Aerospace Safety Advisory Panel, 63498-63499 2016-22234 National Endowment for the Humanities National Endowment for the Humanities NOTICES Meetings: Humanities Panel, 63499-63500 2016-22192 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Humanities

National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of Dietary Supplements Draft 2016-2021 Strategic Plan, 63486 2016-22233 Meetings: Center for Scientific Review, 63486-63488 2016-22163 National Heart, Lung, and Blood Institute, 63488 2016-22164 National Institute of Mental Health, 63486 2016-22165 National Oceanic National Oceanic and Atmospheric Administration NOTICES Meetings: Southeast Data, Assessment, and Review; Data Scoping Webinar for South Atlantic Red Grouper, 63470-63471 2016-22181 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Natural Sounds/Quiet Valuation Survey, 63492-63493 2016-22223 National Science National Science Foundation NOTICES Meetings: Committee on Equal Opportunities in Science and Engineering, 63500 2016-22213 Nuclear Regulatory Nuclear Regulatory Commission NOTICES License Transfer Applications: James A. FitzPatrick Nuclear Power Plant, 63500-63503 2016-22229 License Transfers: Duke Energy Florida, Inc., and Seminole Electric Coop., Inc., Crystal River Unit 3 Nuclear Generating Plant, 63503-63504 2016-22232 Occupational Safety Health Adm Occupational Safety and Health Administration RULES Handling of Retaliation Complaints under the Employee Protection Provision of the Seaman's Protection Act, 63396-63414 2016-21758 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63504-63506 2016-22142 2016-22159 2016-22160 2016-22161 Pension Benefit Pension Benefit Guaranty Corporation RULES Allocation of Assets in Single-Employer Plans: Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits, 63414-63416 2016-22172 Postal Regulatory Postal Regulatory Commission PROPOSED RULES Attributable Costing, 63445-63448 2016-22162 NOTICES New Postal Products, 63506-63507 2016-22121 2016-22208 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 63507-63508 2016-22141 Priority Mail and First-Class Package Service Negotiated Service Agreement, 63508 2016-22140 Priority Mail Negotiated Service Agreement, 63508 2016-22139 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63560-63561 2016-22169 2016-22170 Applications: Dhandho ETF Trust and Dhandho Funds, LLC, 63547-63549 2016-22125 Foreside Advisor Services, LLC, et al., 63541-63543 2016-22126 Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange, Inc., 63508-63511 2016-22145 Bats BZX Exchange, Inc., 63561-63565 2016-22146 Bats EDGA Exchange, Inc., 63549-63552 2016-22148 Bats EDGX Exchange, Inc., 63532-63536 2016-22147 Financial Industry Regulatory Authority, Inc., 63565-63568 2016-22149 Fixed Income Clearing Corp., 63538-63541 2016-22156 Nasdaq Stock Market, LLC, 63523-63525 2016-22155 National Securities Clearing Corp., 63511-63514 2016-22157 New York Stock Exchange, LLC, 63515-63522, 63536-63538 2016-22151 2016-22154 NYSE Arca, Inc., 63525-63532, 63543-63547 2016-22150 2016-22153 2016-22158 NYSE MKT, LLC, 63552-63560 2016-22152 Small Business Small Business Administration RULES Disaster Assistance Loan Program; Disaster Loan Credit and Collateral Requirements, 63366-63367 2016-21512 NOTICES Disaster Declarations: California, 63568-63571 2016-22109 2016-22114 2016-22120 Indiana, 63570 2016-22113 Iowa, 63568-63569 2016-22108 Louisiana; Amendment 2, 63571 2016-22116 Louisiana; Amendment 3, 63570-63571 2016-22115 2016-22117 Louisiana; Amendment 4, 63569-63570 2016-22119 Oklahoma; Amendment 2, 63569 2016-22110 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Lives Bound Together: Slavery at George Washington's Mount Vernon, 63571-63572 2016-22385 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Comprehensive Addiction and Recovery Act Required Training of Nurse Practitioners and Physician Assistants, 63488-63489 2016-22130 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63493-63494 2016-22189 Transportation Department Transportation Department See

Federal Aviation Administration

Treasury Treasury Department See

Bureau of the Fiscal Service

See

Comptroller of the Currency

See

Internal Revenue Service

Separate Parts In This Issue Part II Justice Department, Drug Enforcement Administration, 63576-63631 2016-21589 Part III Federal Trade Commission, 63634-63661 2016-21854 Part IV Federal Trade Commission, 63664-63670 2016-21853 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.

81 179 Thursday, September 15, 2016 Rules and Regulations FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2417 Testimony by FLRA Employees and Production of Official Records in Legal Proceedings AGENCY:

Federal Labor Relations Authority.

ACTION:

Final rule.

SUMMARY:

The Federal Labor Relations Authority (FLRA) amends its procedures for requesters to follow when making requests to or demands on an employee of the FLRA's three-member Authority component (Authority), the Office of the General Counsel, or the Federal Service Impasses Panel (Panel) to produce official records or provide testimony relating to official information in connection with a legal proceeding. Specifically, the amendments expand the regulation's definition of “legal proceeding” to include matters in which the FLRA is a party. The amendments additionally delegate decision-making responsibility to the heads of each of the three components, depending on where the information is located, to ensure that responses to such requests or demands are handled in an orderly, efficient, and consistent manner. The amended procedures will better protect confidential information, provide guidance to requesters and FLRA employees, and reduce the potential for both inappropriate disclosures of official information and wasteful allocation of FLRA resources.

DATES:

Effective September 15, 2016.

FOR FURTHER INFORMATION CONTACT:

Fred B. Jacob, Solicitor, Federal Labor Relations Authority, 1400 K Street NW., Washington, DC 20424; (202) 218-7999; fax: (202) 343-1007; or email: [email protected]

SUPPLEMENTARY INFORMATION:

The FLRA is amending 5 CFR part 2417. Before part 2417's promulgation in March 2009, 5 CFR 2411.11 prohibited FLRA employees from producing documents or giving testimony in response to a subpoena or other request or demand in any civil proceeding without the written consent of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate. Under the prior version of § 2411.11, any employee served with a subpoena or request or demand who was not given the requisite written consent was instructed to move to have the subpoena invalidated “on the ground that the evidence sought is privileged against disclosure by this rule.” Part 2417 eliminated the assertion of privilege and, in its place, established factors for the FLRA to evaluate when considering requests or demands for non-public FLRA information. It also placed decision-making authority exclusively with the Chairman of the FLRA or his or her designated representative.

As described above, the FLRA is amending the regulations to include requests or demands for production of documents or testimony in legal proceedings in which the FLRA is a named party. This is consistent with the FLRA's prior regulations and other agencies' regulations. The FLRA is also amending the regulations to vest decision-making authority over such requests or demands to the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, or to his or her designee. The FLRA has additionally included some minor non-substantive changes to correct typographical errors and to make small stylistic adjustments for clarification.

This rule will ensure a more efficient use of the FLRA's resources, minimize the possibility of involving the FLRA in issues unrelated to its responsibilities, and maintain the impartiality of the FLRA in matters that are in dispute between other parties. It will also continue to serve the FLRA's interest in protecting sensitive, confidential, and privileged information and records that are generated in fulfillment of the FLRA's statutory responsibilities.

This rule is internal and procedural rather than substantive. It does not create a right to obtain official records or the official testimony of an FLRA employee, nor does it create any additional right or privilege not already available to the FLRA to deny any request or demand for testimony or documents. Failure to comply with the procedures set out in these regulations would be a basis for denying a request or demand submitted to the FLRA.

Regulatory Flexibility Act Certification

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FLRA has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

Public Participation

This rule is published as a final rule. It is exempt from public comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of “agency organization, procedure, or practice.”

List of Subjects in 5 CFR Part 2417

Administrative practice and procedure, Government employees.

For the reasons stated in the preamble, the Federal Labor Relations Authority amends 5 CFR part 2417 as set forth below:

PART 2417—TESTIMONY BY EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS 1. The authority citation for part 2417 continues to read as follows: Authority:

5 U.S.C. 7105; 31 U.S.C. 9701; 44 U.S.C. 3101-3107.

Subpart A—General Provisions 2. Amend § 2417.101 by revising paragraphs (a)(1) and (2), (b)(1), (2), (3), and (4), and (d) to read as follows:
§ 2417.101 Scope and purpose.

(a) * * *

(1) The production or disclosure of official information or records by employees, members, advisors, and consultants of the Federal Labor Relations Authority's (FLRA's) three-Member Authority component (the Authority), the Office of the General Counsel(the General Counsel), or the Federal Service Impasses Panel (the Panel); and

(2) The testimony of current and former employees, members, advisors, and consultants of the Authority, the General Counsel, or the Panel relating to official information, official duties, or official records, in connection with a legal proceeding on behalf of any party to a cause pending in civil federal or state litigation, including any proceeding before the FLRA or any other board, commission, or administrative agency of the United States.

(b) * * *

(1) Conserve employees' time for conducting official business;

(2) Minimize employees' involvement in issues unrelated to the FLRA's mission;

(3) Maintain employees' impartiality in disputes between private litigants; and

(4) Protect sensitive, confidential information and the integrity of the FLRA's administrative and deliberative processes.

(d) This part provides guidance for the FLRA's internal operations. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.

3. Amend § 2417.102 by revising the introductory text and paragraphs (a), (b), (d), and (e) to read as follows:
§ 2417.102 Applicability.

This part applies to requests and demands to current and former employees, members, advisors, and consultants for factual or expert testimony relating to official information or official duties, or for production of official records or information, in civil legal proceedings. This part does not apply to:

(a) Requests for or demands upon an employee to testify as to facts or events that are unrelated to his or her official duties, or that are unrelated to the functions of the Authority, the General Counsel, or the Panel;

(b) Requests for or demands upon a former employee to testify as to matters in which the former employee was not directly or materially involved while at the Authority, the General Counsel, or the Panel;

(d) Congressional requests and demands for testimony, records, or information; or

(e) Requests or demands for testimony, records, or information by any Federal, state, or local agency in furtherance of an ongoing investigation of possible violations of criminal law.

4. Revise § 2417.103 to read as follows:
§ 2417.103 Definitions.

The following definitions apply to this part:

Demand means an order, subpoena, or other command of a court or other competent authority for the production, disclosure, or release of records, or for the appearance and testimony of an employee in a civil legal proceeding.

Employee means:

(1)(i) Any current or former employee or member of the Authority, the General Counsel, or the Panel;

(ii) Any other individual hired through contractual agreement by or on behalf of the Authority, the General Counsel, or the Panel, or who has performed or is performing services under such an agreement for the Authority, the General Counsel, or the Panel; and

(iii) Any individual who served or is serving in any consulting or advisory capacity to the Authority, the General Counsel, or the Panel, whether formal or informal.

(2) This definition does not include former FLRA employees who agree to testify about general matters, matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the FLRA.

Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer, or other body that conducts a civil legal or administrative proceeding. Legal proceeding includes all phases of litigation.

Records or official records and information means all information in the custody and control of the Authority, the General Counsel, or the Panel, relating to information in the custody and control thereof, or acquired by an employee while in the performance of his or her official duties or because of his or her official status, while the individual was employed by or on behalf of the Authority, the General Counsel, or the Panel.

Request means any request, by whatever method, for the production of records and information or for testimony that has not been ordered by a court or other competent authority.

Requester means anyone who makes a request or demand under this part upon the FLRA.

Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding.

5. Revise the heading for subpart B to read as follows: Subpart B—Requests or Demands for Testimony and Production of Documents 6. Revise § 2417.201 to read as follows:
§ 2417.201 General prohibition and designation of the appropriate decision-maker.

(a) General prohibition. No employee or former employee of the Authority, the General Counsel, or the Panel may produce official records and information or provide any testimony relating to official information in response to a request or demand without the prior, written approval of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate.

(b) Appropriate decision-maker. (1) The Chairman of the FLRA, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the FLRA's Authority component, or the person who is the subject of the request or demand is subject to the supervision or control of the FLRA's Authority component or was subject to such supervision or control when formerly employed at the FLRA.

(2) The General Counsel, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the General Counsel, or the person who is the subject of the request or demand is subject to the supervision or control of the General Counsel or was subject to such supervision or control when formerly employed at the FLRA.

(3) The Chairman of the Panel, or his or her designee, determines whether to grant approval if the record requested or demanded is maintained by the Panel, or the person who is the subject of the request or demand is subject to the supervision or control of the Panel or was subject to such supervision or control when formerly employed at the FLRA.

7. Amend § 2417.202 by revising the section heading, introductory text, and paragraphs (f), (h), (i), (m), (n), and (o) to read as follows:
§ 2417.202 Factors that the decision-maker will consider.

The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to a request or demand. Among the relevant factors that the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel may consider in making this decision are whether:

(f) The request or demand is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the request or demand arose;

(h) Disclosure would reveal confidential, sensitive, or privileged information; trade secrets or similar, confidential or financial information; otherwise protected information; or information that would otherwise be inappropriate for release;

(i) Disclosure would impede or interfere with an ongoing law-enforcement investigation or proceeding, or compromise constitutional rights or national-security interests;

(m) The request or demand is within the authority of the party making it;

(n) The request or demand is sufficiently specific to be answered; and

(o) Any other factor deemed relevant under the circumstances of the particular request or demand.

8. Amend § 2417.203 by revising the introductory text and paragraphs (a), (b) introductory text, (b)(4), (5), (6), (7), and (9), (c), (d), (e), and (f) to read as follows:
§ 2417.203 Filing requirements for litigants seeking documents or testimony.

A requester must comply with the following requirements when filing a request or demand for official records and information or testimony under part 2417. Requesters should file a request before a demand.

(a) The request or demand must be in writing and must be submitted to the FLRA's Office of the Solicitor.

(b) The written request or demand must contain the following information:

(4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and the burden on the FLRA to produce the records or provide testimony;

(5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than an employee, such as a retained expert;

(6) If testimony is sought, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony;

(7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;

(9) An estimate of the amount of time that the requester and other parties will require for each employee to prepare for testimony, to travel to the legal proceeding, and to attend the legal proceeding.

(c) The Office of the Solicitor reserves the right to require additional information to complete the request, where appropriate.

(d) Requesters should submit their request or demand at least 30 days before the date that records or testimony are required. Requests or demands submitted fewer than 30 days before records or testimony are required must be accompanied by a written explanation stating the reasons for the late request or demand and the reasons that would justify expedited processing.

(e) Failure to cooperate in good faith to enable the FLRA to make an informed decision may serve as the basis for a determination not to comply with the request or demand.

(f) The request or demand should state that the requester will provide a copy of the employee's statement at the expense of the requester and that the requester will permit the FLRA to have a representative present during the employee's testimony.

9. Revise § 2417.204 to read as follows:
§ 2417.204 Where to submit a request or demand.

(a) Requests or demands for official records, information, or testimony under this part must be served on the Office of the Solicitor at the following address: Office of the Solicitor, Federal Labor Relations Authority, 1400 K Street NW., Suite 201, Washington, DC 20424-0001; telephone: (202) 218-7999; fax: (202) 343-1007; or email: [email protected] The request or demand must be sent by mail, fax, or email and clearly marked “Part 2417 Request for Testimony or Official Records in Legal Proceedings.”

(b) A person requesting public FLRA information and non-public FLRA information under this part may submit a combined request for both to the Office of the Solicitor. If a requester decides to submit a combined request under this section, the FLRA will process the combined request under this part and not under part 2411 (the FLRA's Freedom of Information Act regulations).

10. Revise § 2417.205 to read as follows:
§ 2417.205 Consideration of requests or demands.

(a) After receiving service of a request or a demand for official records, information, or testimony, the appropriate decision-maker will review the request and, in accordance with the provisions of this part, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official records and information.

(b) Absent exigent circumstances, the appropriate decision-maker will issue a determination within 30 days from the date that it receives the request.

(c) The appropriate decision-maker may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of the FLRA or the United States or for other good cause.

(d) The FLRA may certify that records are true copies in order to facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the Office of the Solicitor at least 30 days before the date that they will be needed.

11. Revise § 2417.206 to read as follows:
§ 2417.206 Final determination.

The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, makes the final determination on demands or requests to employees thereof for production of official records and information or testimony in civil litigation under this part. All final determinations are within the sole discretion of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate. The appropriate decision-maker will notify the requester and, when appropriate, the court or other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that may be imposed on the release of records or information, or on the testimony of an employee. This final determination exhausts administrative remedies for discovery of the information.

12. Amend § 2417.207 by revising paragraphs (c) introductory text, (c)(2), and (d) to read as follows:
§ 2417.207 Restrictions that apply to testimony.

(c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, the employee shall not:

(2) For a current employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the FLRA unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805).

(d) The scheduling of an employee's testimony, including the amount of time that the employee will be made available for testimony, will be subject to the approval of the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate.

13. Revise § 2417.208 to read as follows:
§ 2417.208 Restrictions that apply to released records.

(a) The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate. In cases where protective orders or confidentiality agreements have already been executed, the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement.

(b) If the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate so determines, original records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes.

14. Revise § 2417.209 to read as follows:
§ 2417.209 Procedure when a decision is not made before the time that a response is required.

If a response to a demand or request is required before the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel can make the determination referred to in § 2417.206, the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination.

15. Revise § 2417.210 to read as follows:
§ 2417.210 Procedure in the event of an adverse ruling.

If the court or other competent authority fails to stay a demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents, and respectfully decline to comply with the demand or request, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

Subpart C—Schedule of Fees 16. Revise § 2417.301 to read as follows:
§ 2417.301 Fees.

(a) Generally. The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs.

(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records; costs for employee time spent reviewing the request; and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. The FLRA will calculate and charge these fees, costs, and expenses as it charges like fees and costs arising from requests made pursuant to the Freedom of Information Act regulations in part 2411 of this chapter.

(c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court's rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the Federal district court closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include costs for time spent by the witness to prepare for testimony, to travel to the legal proceeding, and to attend the legal proceeding.

(d) Payment of fees. A requester must pay witness fees for current employees and any record certification fees by submitting to the Office of the Solicitor a check or money order for the appropriate amount made payable to the Treasury of the United States. In the case of testimony of former employees, the requester must pay applicable fees directly to the former employee in accordance with 28 U.S.C. 1821 or other applicable statutes.

(e) Waiver or reduction of fees. The Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records.

(f) De minimis fees. The FLRA will not assess fees if the total charge would be $10.00 or less.

Subpart D—Penalties 17. Amend § 2417.401 by revising paragraph (a) to read as follows:
§ 2417.401 Penalties.

(a) An employee who discloses official records or information, or who gives testimony relating to official information, except as expressly authorized by the Chairman of the FLRA, the General Counsel, or the Chairman of the Panel, as appropriate, or as ordered by a Federal court after the FLRA has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.

Dated: September 1, 2016. Carol Waller Pope, Chairman.
[FR Doc. 2016-21427 Filed 9-14-16; 8:45 am] BILLING CODE P
FARM CREDIT ADMINISTRATION 12 CFR Part 602 RIN 3052-AD18 Releasing Information; Availability of Records of the Farm Credit Administration; FOIA Fees AGENCY:

Farm Credit Administration.

ACTION:

Final rule.

SUMMARY:

The Farm Credit Administration (FCA or Agency) issues a final rule amending its regulations to reflect changes to the Freedom of Information Act (FOIA). The FOIA Improvement Act of 2016 requires FCA to amend its FOIA regulations to extend the deadline for administrative appeals, to add information on dispute resolution services, and to amend the way FCA charges fees.

DATES:

This regulation will become effective no earlier than 30 days after publication in the Federal Register during which either one or both Houses of Congress are in session. We will publish a notice of the effective date in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Mike Wilson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102-5090, (703)-883-4124, TTY (703) 883-4434; or Autumn Agans, Attorney-Advisor, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090. (703) 883-4020, TTY (703) 883-4020.

SUPPLEMENTARY INFORMATION: I. Objective

The objective of this final rule is to reflect changes to the FOIA by the FOIA Improvement Act of 2016 (Improvement Act). The Improvement Act added additional protections for requesters of records held by the executive branch of the U.S. Government.

II. Background

The FOIA was enacted to give the public a right to access records held by the executive branch that, although not classified, were not otherwise available to them.1 Since its enactment in 1966, the FOIA has been amended on a number of occasions to adapt to the times and changing priorities.

1 Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, sec. 1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, secs. 1-3, Nov. 21, 1974, 88 Stat. 1561-1564; Pub. L. 94-409, sec. 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-454, title IX, sec. 906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, sec. 402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title I, secs. 1802, 1803, Oct. 27, 1986, 100 Stat. 3207-48, 3207-49; Pub. L. 104-231, secs. 3-11, Oct. 2, 1996, 110 Stat. 3049-3054; Pub. L. 107-306, title III, sec. 312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110-175, secs. 3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8-10(a), 12, Dec. 31, 2007, 121 Stat. 2525-2530; Pub. L. 111-83, title V, sec. 564(b), Oct. 28, 2009, 123 Stat. 2184.

III. FOIA Procedures

The Improvement Act contains several substantive and procedural amendments to the FOIA, as well as new reporting requirements for agencies.2 The Improvement Act addresses a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. The Improvement Act also updates how fees are assessed.

2 Pub. L. 114-185, June 30, 2016.

IV. Section-by-Section Analysis A. Section 602.8

We revise § 602.8 by:

1. Changing the appeals deadline from 30 days to 90 days in paragraph (a); and

2. Adding FCA's FOIA Public Liaison and the Office of Government Information Services to the list of offices available to offer dispute resolution services in paragraph (d).

B. Section 602.12

We revise § 602.12 by adding paragraphs (f), (g), and (h) with updated information about charging fees.

C. Section 602.16

We revise § 602.16 by removing the last line of the paragraph, which requires FCA to assume multiple requests made within 30 days have been made to avoid fees.

V. Certain Findings

We have determined that the amendments mandated by the Improvement Act involve agency management and technical changes. Therefore, the amendments do not constitute a rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. 551, 553(a)(2). Under the APA, the public may participate in the promulgation of rules that have a substantial impact on the public. The amendments to our regulations relate to agency management and technical changes only and are required by statute, and therefore, do not require public participation.

Even if these amendments were a rulemaking under 5 U.S.C. 551, 553(a)(2) of the APA, we have determined that notice and public comment are unnecessary and contrary to the public interest. Under 5 U.S.C. 553(b)(B) of the APA, an agency may publish regulations in final form when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest. The proposed amendments are required by statute, are not a matter of agency discretion, and provide additional protections to the public through the existing regulations. Thus, notice and public procedure are impracticable, unnecessary, and contrary to the public interest.

VI. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), FCA hereby certifies that the final rule will not have a significant economic impact on a substantial number of small entities. Each of the banks in the Farm Credit System (System), considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

List of Subjects in 12 CFR Part 602

Courts, Freedom of information, Government employees.

As stated in the preamble, part 602 of chapter VI, title 12 of the Code of Federal Regulations is amended as follows:

PART 602—RELEASING INFORMATION 1. The authority citation for part 602 continues to read as follows: Authority:

Secs. 5.9, 5.17, 5.59 of 92-181, 85 Stat. 583 (12 U.S.C. 2243, 2252, 2277a-8); 5 U.S.C. 301, 552; 52 FR 10012; E.O. 12600; 52 FR 23781, 3 CFR 1987, p. 235.

Subpart B—Availability of Records of the Farm Credit Administration 2. Section 602.8 is amended by revising paragraph (a) and adding paragraph (d) to read as follows:
§ 602.8 Appeals.

(a) How to appeal. You may appeal a total or partial denial of your FOIA request within 90 calendar days of the date of the denial letter. Your appeal must be in writing and addressed to the Director, Office of Agency Services (OAS), Farm Credit Administration. You may send it:

(1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;

(2) By facsimile to (703) 893-2608; or

(3) By Email to [email protected]

You also have the right to seek dispute resolution services from FCA's FOIA Public Liaison and the Office of Government Information Services.

(d) How to seek dispute resolution services. Requesters may seek dispute resolution services from:

(1) FCA's FOIA Public Liaison;

(i) By mail addressed to FOIA Public Liaison, 1501 Farm Credit Drive, McLean, Virginia 22101-5090;

(ii) By facsimile at 703-790-3260; or

(iii) By Email at [email protected]

(2) Office of Government Information Services;

(i) By mail to Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, Maryland, 20740-6001;

(ii) By facsimile at (202) 741-5769; or

(iii) By Email at [email protected]

Subpart C—FOIA Fees 3. Section 602.12 is amended by adding paragraphs (f), (g) and (h) to read as follows:
§ 602.12 Fees.

(f) We will not assess fees if we fail to comply with any time limit under the FOIA or these regulations, and have not timely notified the requester, in writing, that an unusual circumstance exists. If an unusual circumstance exists, and timely, written notice is given to the requester, we may be excused an additional 10 working days before fees are automatically waived under this paragraph.

(g) If we determine that unusual circumstances apply and more than 5,000 pages are necessary to respond to a request, we may charge fees if we provided a timely, written notice to the requester and discussed with the requester via mail, Email, or telephone (or made at least three good-faith attempts to do so) how the requester could effectively limit the scope of the request.

(h) If a court has determined that exceptional circumstances exist, a failure to comply with time limits imposed by these regulations or FOIA shall be excused for the length of time provided by court order.

4. Section 602.16 is revised to read as follows:
§ 602.16 Combining requests.

You may not avoid paying fees by filing multiple requests at the same time. When FCA reasonably believes that you, alone or with others, are breaking down one request into a series of requests to avoid fees, we will combine the requests and charge accordingly.

Dated: September 9, 2016. Dale L. Aultman, Secretary, Farm Credit Administration Board.
[FR Doc. 2016-22107 Filed 9-14-16; 8:45 am] BILLING CODE 6705-01-P
SMALL BUSINESS ADMINISTRATION 13 CFR Part 123 RIN 3245-AG61 Disaster Assistance Loan Program; Disaster Loan Credit and Collateral Requirements AGENCY:

U.S. Small Business Administration.

ACTION:

Final rule.

SUMMARY:

On April 25, 2014, the Small Business Administration (SBA) published in the Federal Register an interim final rule amending its disaster loan program regulations in response to Hurricane Sandy Rebuilding Task Force recommendations. The first change allowed SBA to rely on the disaster loan applicant's credit, including credit score, rather than personal or business cash flow in order to assess repayment ability for those applicants with strong credit. The second change increased the amount of disaster assistance funds that can be immediately disbursed to borrowers by raising the unsecured threshold for economic injury loans for all disasters and for physical damage loans for major disasters. SBA received no comments on its interim final rule; therefore, SBA adopts the interim final rule without change.

DATES:

This final rule is effective September 15, 2016.

FOR FURTHER INFORMATION CONTACT:

Eric Wall, Office of Disaster Assistance, 409 3rd St. SW., Washington, DC 20416, (202) 205-6739.

SUPPLEMENTARY INFORMATION:

I. Background

The Hurricane Sandy Rebuilding Task Force was established pursuant to an Executive Order issued on December 7, 2012, E.O. 13632, Establishing the Hurricane Sandy Task Force (December 7, 2012). This Task Force was established to ensure the recovery effort benefitted from cabinet-level focus and coordination, and was charged with establishing guidelines for the investment of Federal funds made available for the recovery. As a member of this task force, SBA collaborated with these executive agencies and offices to identify and work to remove obstacles to resilient rebuilding while taking into account existing and future risks and promoting the long-term sustainability of communities and ecosystems in the Sandy-affected region.

As a result of Task Force recommendations, SBA published an interim final rule on April 25, 2014 (79 FR 22859). The rule amended 13 CFR 123.6 of SBA regulations to allow SBA to rely on a disaster applicant's credit, including score, as evidence of repayment ability. This change allowed SBA to expedite processing of applications from disaster victims with strong credit by removing the requirement to analyze cash flow for all loans. The interim final rule also revised 13 CFR 123.11 to increase SBA's unsecured disaster loan limit to $25,000 for economic injury loans for all disasters and for physical damage loans for major disasters. The comment period for the interim final rule ended on June 23, 2014, and SBA received no comments.

Compliance with Executive Orders 12866, 12988, 13132, and 13563 and the Paperwork Reduction Act (44 U.S.C., Ch. 35) and the Regulatory Flexibility Act (5 U.S.C. 601-612) Executive Order 12866

The Office of Management and Budget (OMB) has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866. This is not a major rule under the Congressional Review Act, 5 U.S.C. 800.

Executive Order 12988

This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have preemptive or retroactive effect.

Executive Order 13132

For the purposes of Executive Order 13132, this final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, SBA determined that this final rule has no federalism implications warranting preparation of a federalism assessment.

Executive 13563

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 also requires that regulations be based on the open exchange of information and perspectives among state and local officials, affected stakeholders in the private sector, and the public as a whole.

In developing the interim final rule, SBA collaborated with multiple agencies through its participation on Hurricane Sandy Rebuilding Task Force. The Task Force was led by the Secretary of Housing and Urban Development, and included twenty-three executive department agencies and offices. The Task Force worked with these Federal agency members as well as state and local officials to identify areas where immediate steps could be taken to help communities recovering from Hurricane Sandy. Executive Order 13563 also recognizes the importance of maintaining a consistent culture of retrospective review and analysis throughout the executive branch. SBA had identified revisions to § 123.6 to expedite approval of disaster loans based on credit score as a part of its retrospective review. As stated in that report, an analysis of the performance of disaster loans to borrowers with strong credit indicated limited risk. Changing the current process of requiring a cash flow analysis for all loan applications has allowed SBA more flexibility to utilize a loan approval process that is in line with current private sector practices and reduce the processing cost for disaster loans.

Paperwork Reduction Act (44 U.S.C. Ch. 35)

For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this final rule does not impose any new reporting or recordkeeping requirements.

Regulatory Flexibility Act (5 U.S.C. 601-612)

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 requires administrative agencies to consider the effect of their actions on small entities, including small businesses. According to the RFA, when an agency issues a rule, the agency must prepare an analysis to determine whether the impact of the rule will have a significant economic impact on a substantial number of small entities. However, the RFA allows an agency to certify a rule in lieu of preparing an analysis if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

While this rule will affect all future applicants for disaster assistance, some of which would be small entities, it does not impose any requirements on small entities. It streamlines SBA's processes in order to enable the Agency to provide disaster assistance more quickly and efficiently to small entities. SBA is not a small entity. As such, SBA certifies that this rule does not have a significant economic impact on a substantial number of small entities.

List of Subjects in 13 CFR Part 123

Disaster assistance, Loan programs—business, Reporting and recordkeeping requirements, Small businesses, Terrorism.

Authority and Issuance Accordingly, for the reasons set forth above, the interim final rule published at 79 FR 22859 (April 25, 2014) is adopted as a final rule without change. Dated: August 26, 2016. Maria Contreras-Sweet, Administrator.
[FR Doc. 2016-21512 Filed 9-14-16; 8:45 am] BILLING CODE 8025-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0077; Directorate Identifier 2013-NM-254-AD; Amendment 39-18645; AD 2016-18-14] RIN 2120-AA64 Airworthiness Directives; ATR—GIE Avions de Transport Régional Airplanes AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain ATR—GIE Avions de Transport Régional Model ATR42-500 and Model ATR72-212A airplanes. This AD was prompted by a report indicating that interference occurred between a Type III Emergency Exit door and the surrounding passenger cabin furnishing during a production check. This AD requires measuring the gap between the Type III Emergency Exit doors and certain overhead stowage compartment fittings; removing certain fittings from the overhead stowage compartments and measuring the gap between the Type III Emergency Exit doors and the overhead stowage compartment hooks, if necessary; re-installing or repairing, as applicable, the Type III Emergency Exit doors; and modifying the overhead stowage compartments. We are issuing this AD to prevent interference between a Type III Emergency Exit door and the overhead stowage compartment fitting installed on the rail, which could result in obstructed opening of a Type III Emergency Exit door during an emergency evacuation.

DATES:

This AD is effective October 20, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 20, 2016.

ADDRESSES:

For service information identified in this final rule, contact ATR—GIE Avions de Transport Régional, 1, Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email [email protected]; Internet http://www.aerochain.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0077.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0077; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

SUPPLEMENTARY INFORMATION: Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain ATR—GIE Avions de Transport Régional Model ATR42-500 and Model ATR72-212A airplanes. The SNPRM published in the Federal Register on May 12, 2016 (81 FR 29511) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on January 23, 2015 (80 FR 3531) (“the NPRM”). The NPRM proposed to require measuring the gap between the Type III Emergency Exit doors and certain overhead stowage compartment fittings; removing certain fittings from the overhead stowage compartments and measuring the gap between the Type III Emergency Exit doors and the overhead stowage compartment hooks, if necessary; and re-installing or repairing, as applicable, the Type III Emergency Exit doors. The SNPRM proposed to add requirements for modifying the overhead stowage compartments (including removing the hooks and fittings from the lateral rails) and re-identifying the overhead stowage compartments with new part numbers. We are issuing this AD to prevent interference between a Type III Emergency Exit door and the overhead stowage compartment fitting installed on the rail, which could result in obstructed opening of a Type III Emergency Exit door during an emergency evacuation.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0018, dated February 5, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain ATR—GIE Avions de Transport Régional Model ATR42-500 and Model ATR72-212A airplanes. The MCAI states:

Interference between a Type III Emergency Exit door opening and surrounding passenger cabin furnishing was detected during a production check.

Subsequent investigation identified an insufficient gap between the emergency exit door internal skin structure and the overhead stowage compartment fitting, installed on the rail, as a cause of the interference.

This condition, if not detected and corrected, could prevent an unobstructed opening of both Type III Emergency Exit doors in case of emergency evacuation.

Prompted by this finding, EASA issued AD 2013-0280 to require a one-time check of the gap between the Type III Emergency Exit door internal skin and a relevant fitting and, depending on findings, the accomplishment of applicable corrective action(s). That [EASA] AD was considered to be a temporary measure.

Since that [EASA] AD was issued, ATR developed a design solution to ensure that no interference with surrounding structure occurs during opening of an emergency exit. ATR Service Bulletins (SB) ATR42-25-0185, SB ATR42-25-0186, SB ATR72-25-1148 and SB ATR72-25-1149 were issued to provide the necessary modification instructions for in-service aeroplanes. For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013-0280, which is superseded, and requires modification of the overhead bin attachment adjacent to the Type III emergency exit doors [The modification includes removing the hooks and fittings from the lateral rails and re-identifying the overhead stowage compartments].

Required actions include an additional measurement of the gap between the internal skin and overhead stowage compartment hooks of both Type III Emergency Exits, if necessary. Corrective actions include re-installing the Type III Emergency Exit doors and doing a repair. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0077. Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM or on the determination of the cost to the public.

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the SNPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM.

Related Service Information Under 1 CFR Part 51

Avions de Transport Régional Service has issued the following service information:

• ATR Service Bulletin ATR42 25-0180, dated August 19, 2013, which describes procedures for, among other things, removing certain fittings from the overhead stowage compartments, measuring the gap between the Type III Emergency Exit doors and the overhead stowage compartment hooks, re-installing the Type III Emergency Exit doors, and repairing the Type III Emergency Exit doors.

• ATR Service Bulletin ATR72 25-1141, dated August 19, 2013, which describes procedures for, among other things, removing certain fittings from the overhead stowage compartments, measuring the gap between the Type III Emergency Exit doors and the overhead stowage compartment hooks, and re-installing the Type III Emergency Exit doors.

• ATR Service Bulletin ATR42-25-0185, dated November 21, 2014, which describes procedures for modifying the overhead stowage compartments.

• ATR Service Bulletin ATR42-25-0186, dated November 21, 2014, which describes procedures for modifying the overhead stowage compartments.

• ATR Service Bulletin ATR72-25-1148, dated November 21, 2014, which describes procedures for modifying the overhead stowage compartments.

• ATR Service Bulletin ATR72-25-1149, dated November 21, 2014, which describes procedures for modifying the overhead stowage compartments.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 4 airplanes of U.S. registry.

We also estimate that it will take about 4 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,360, or $340, or per product.

In addition, we estimate that any necessary follow-on actions will take about 1 work-hour for a cost of $85 per product. We have no way of determining the number of aircraft that might need these actions.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-18-14 ATR—GIE Avions de Transport Régional: Amendment 39-18645; Docket No. FAA-2015-0077; Directorate Identifier 2013-NM-254-AD. (a) Effective Date

This AD is effective October 20, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.

(1) ATR—GIE Avions de Transport Régional Model ATR42-500 airplanes, all manufacturer serial numbers (MSNs) on which ATR Modification 6518 has been embodied in production, except those airplanes on which ATR Modification 7294 has been embodied in production.

(2) ATR—GIE Avions de Transport Régional Model ATR72-212A airplanes on which ATR Modification 6517 has been embodied in production, except those airplanes on which ATR Modification 7294 has been embodied in production.

(d) Subject

Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

(e) Reason

This AD was prompted by a report indicating that interference occurred between a Type III Emergency Exit door and the surrounding passenger cabin furnishing during a production check. We are issuing this AD to prevent interference between a Type III Emergency Exit door and the overhead stowage compartment fitting installed on the rail; which could result in obstructed opening of a Type III Emergency Exit door during an emergency evacuation.

(f) Compliance

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

(g) Measurement of Gap Between Type III Emergency Exit Doors and Certain Overhead Stowage Compartment Fittings

For all airplanes, except those airplanes on which ATR Modification 7152 has been embodied in production and except airplanes having MSN 1002, 1005, 1089, 1094, 1095, 1097, 1098, 1099, 1100, 1101, or 1102: Within 2 months after the effective date of this AD, measure the gap between each Type III Emergency Exit door, left-hand (LH) and right-hand (RH), and the overhead stowage compartment fitting installed on the rail by unlocking and slightly rotating the LH and RH Type III Emergency Exit doors with the doors remaining on the lower fittings. Use a shim gauge 6 millimeters (mm) (0.236 inch) thick, to measure the gap between the internal skin of the doors and the relevant fittings, part numbers (P/N) S2522924620000 (LH fitting) and P/N S2522924620100 (RH fitting).

Note 1 to paragraph (g) of this AD:

Illustrations may be found in the applicable ATR Illustrated Parts Catalog (IPC) 25-23-02, figure 87, item 90/100.

Note 2 to paragraph (g) of this AD:

It might be necessary to pull on the door blanket to correctly see the door internal skin.

(h) Re-Installation of Type III Emergency Exit Doors

During the measurement required by paragraph (g) of this AD, if it is determined that there is a gap equal to or greater than 6 mm (0.236 inch): Before further flight, re-install the LH and RH Type III Emergency Exit Doors, in accordance with paragraph 3.C.(1)(d) of the Accomplishment Instructions of ATR Service Bulletin ATR42-25-0180, dated August 19, 2013; or ATR Service Bulletin ATR72-25-1141, dated August 19, 2013; as applicable.

(i) Removal of Fitting and Measurement of Gap Between Door Internal Skin and Overhead Stowage Compartment Hooks

During the measurement required by paragraph (g) of this AD, if it is determined that there is a gap less than 6 mm (0.236 inch): Before further flight, remove the fitting having P/N S2522924620000 (LH fitting) or P/N S2522924620100 (RH fitting), and measure the gap between the internal skin of the LH and RH Type III Emergency Exit doors and the overhead stowage compartment hooks, in accordance with the Accomplishment Instructions of ATR Service Bulletin ATR42-25-0180, dated August 19, 2013; or ATR72-25-1141, dated August 19, 2013; as applicable.

(1) If, during the measurement required by paragraph (i) of this AD, it is determined that there is a gap equal to or greater than 6 mm (0.236 inch): Before further flight, re-install the LH and RH Type III Emergency Exit Doors, in accordance with the Accomplishment Instructions of ATR Service Bulletin ATR42-25-0180, dated August 19, 2013; or ATR72-25-1141, dated August 19, 2013; as applicable.

(2) If, during the measurement required by paragraph (i) of this AD, it is determined that there is a gap less than 6 mm (0.236 inch): Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or ATR-GIE Avions de Transport Régional's EASA Design Organization Approval (DOA).

(j) Modification of Overhead Stowage Compartments and Re-Identification of Part Number

Within 4 months after the effective date of this AD: Modify the overhead stowage compartments, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraphs (j)(1) through (j)(4) of this AD.

(1) For airplanes identified in ATR Service Bulletin ATR42-25-0185, dated November 21, 2014: ATR Service Bulletin ATR42-25-0185, dated November 21, 2014.

(2) For airplanes identified in ATR Service Bulletin ATR42-25-0186, dated November 21, 2014: ATR Service Bulletin ATR42-25-0186, dated November 21, 2014.

(3) For airplanes identified in ATR Service Bulletin ATR72-25-1148, dated November 21, 2014: ATR Service Bulletin ATR72-25-1148, dated November 21, 2014.

(4) For airplanes identified in ATR Service Bulletin ATR72-25-1149, dated November 21, 2014: ATR Service Bulletin ATR72-25-1149, dated November 21, 2014.

(k) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or ATR—GIE Avions de Transport Régional's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

(l) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0018, dated February 5, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0077.

(m) Material Incorporated by Reference

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

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

(i) ATR Service Bulletin ATR42-25-0180, dated August 19, 2013.

(ii) ATR Service Bulletin ATR42-25-0185, dated November 21, 2014.

(iii) ATR Service Bulletin ATR42-25-0186, dated November 21, 2014.

(iv) ATR Service Bulletin ATR72-25-1141, dated August 19, 2013.

(v) ATR Service Bulletin ATR72-25-1148, dated November 21, 2014.

(vi) ATR Service Bulletin ATR72-25-1149, dated November 21, 2014.

(3) For service information identified in this AD, contact ATR—GIE Avions de Transport Régional, 1, Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email [email protected]; Internet http://www.aerochain.com.

(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

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

Issued in Renton, Washington, on August 25, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-21292 Filed 9-14-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-6550; Directorate Identifier 2013-NM-162-AD; Amendment 39-18638; AD 2016-18-08] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 90-11-05 for certain Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes and Model A300 B4-600 series airplanes. AD 90-11-05 required repetitive detailed inspections for cracking in the aft hinge brackets of the outer shroud box that is located in the outer wing box, and related investigative and corrective actions if necessary. This new AD changes certain compliance times and adds airplanes to the applicability. This AD was prompted by reports of cracks in the aft hinge brackets of the outer shroud box that is located in the outer wing box, which were found during routine maintenance checks, and our subsequent determination that a change in inspection compliance times is needed. We are issuing this AD to detect and correct cracking of the aft hinge brackets of the outer shroud box; such cracking could affect the structural integrity of the airplane.

DATES:

This AD becomes effective October 20, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 20, 2016.

ADDRESSES:

For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6550.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6550; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 90-11-05, Amendment 39-6603 (89-NM-223-AD) (55 FR 20129, May 15, 1990) (“AD 90-11-05”). AD 90-11-05 applied to certain Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4 203 airplanes and Model A300 B4-600 series airplanes. The NPRM published in the Federal Register on December 14, 2015 (80 FR 77279) (“the NPRM”). The NPRM was prompted by a determination that a change to certain compliance times is needed. The NPRM proposed to continue to require doing repetitive detailed inspections for cracking in the hinge brackets of the forward and aft outer shroud boxes that are located in the outer wing box, and related investigative and corrective actions if necessary. The NPRM also proposed to change certain compliance times and add airplanes to the applicability. We are issuing this AD to detect and correct cracking of the aft hinge brackets of the outer shroud box; such cracking could affect the structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0181R1, dated August 20, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Model A300 series airplanes and Model A300 B4-600 series airplanes. The MCAI states:

In the past, aft hinge brackets of the outer wing box were found cracked. Fracture of a bracket would allow vertical movement of the inner shroud box structure, which could result in damage to the top skin of the inboard flap. In addition, the loads carried by the brackets will be transferred to the remaining supports, which may also crack and cause extensive structural damage.

This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.

To address this potential unsafe condition, DGAC [Direction Générale de l'Aviation Civile] France issued * * * [an airworthiness directive] (later revised) to require repetitive inspections of the hinge bracket of the outer box and, depending on findings, corrective action(s).

Since that [DGAC] AD was issued, a fleet survey and updated Fatigue and Damage Tolerance analysis were performed in order to substantiate the A300 Extended Service Goal (ESG) and A300-600 Extended Service Goal (ESG2) exercise.

The results of these analyses led to a change in the inspection thresholds and intervals in Flight Cycles (FC) and the introduction of Flight Hours (FH) limits.

For the reasons described above, this [EASA] AD retains the requirements of DGAC France * * * [an airworthiness directive], which is superseded, but requires those actions within the new thresholds and intervals given by Airbus Service Bulletin (SB) A300-57-0142 Revision 04 or A300-57-6010 Revision 05, as applicable to aeroplane model.

Revision 1 of this [EASA] AD is issued to add model A300 B4-203 aeroplanes to the applicability and compliance time tables. This model is covered by Airbus SB A300-57-0142, but was mistakenly omitted from the original [EASA] AD issue.

The corrective action for a hinge bracket that is cracked or fractured is replacing the damaged hinge bracket with a new bracket.

For airplanes on which a crack is found in one half bracket or both half brackets, related investigative actions include a general visual inspection for secondary damage (e.g., cracks, wear damage, pitting, and gouging) in the following areas:

• The inner shroud-box forward attachments and the attachment brackets at the inboard end.

• The inner and outer shroud-box structure, adjacent to the fractured bracket.

• The top skin of the inboard flap.

The corrective action for damage findings during the related investigative action is repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).

The compliance time for related investigative actions and corrective actions is before further flight.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6550.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to the comment.

Request To Exclude Certain Airplanes From the Applicability

FedEx requested that we exclude from the proposed applicability airplanes on which the actions specified in Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989, have been accomplished. FedEx stated that it has accomplished the optional terminating actions provided in paragraph (j)(1) of the proposed AD, and specified in Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989, on several of its airplanes.

We disagree with FedEx's request. As of the effective date of this AD, additional actions are required for airplanes on which the optional modification has been accomplished. These airplanes will need to have a one-time detailed visual inspection of the forward and aft outer shroud box with no cracking found, as required by paragraph (j)(2) of this AD. We have not changed this AD in this regard.

Changes Made to This AD

In paragraph (j)(2) of the proposed AD, we proposed to provide an optional method of compliance (i.e., a replacement and a one-time inspection) for actions specified in paragraph (g) of the proposed AD. We also proposed to give credit in paragraph (k)(2) of the proposed AD for replacements accomplished before the effective date of this AD using the same service information identified in paragraph (j)(2) of the AD:

• Airbus Service Bulletin A300-57-143, dated December 17, 1986.

• Airbus Service Bulletin A300-57-143, Revision 1, dated March 19, 1987.

• Airbus Service Bulletin A300-57-6011, dated December 17, 1986.

• Airbus Service Bulletin A300-57-6011, Revision 1, dated March 19, 1987.

Since we cannot make this service information reasonably available, we have revised paragraph (j)(2) of the proposed AD, removed redundant paragraph (k)(2) of the proposed AD from this AD, and redesignated paragraph (k)(1) and subsequent subparagraphs accordingly. We revised paragraph (j)(2) of this AD by removing the references to the service information and instead specified that operators must do the replacement using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).

Conclusion

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Related Service Information Under 1 CFR Part 51

Airbus has issued the following service information.

• Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.

• Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989, which describes procedures for replacing the aft aluminum alloy brackets on the outer shroud box with new steel brackets.

• Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.

• Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989, which describes procedures for replacing the aft aluminum alloy brackets on the outer shroud box with new steel brackets.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 3 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 8 work-hours × $85 per hour = $680 per inspection cycle $0 $680 per inspection cycle $2,040 per inspection cycle.

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:

On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement 27 work-hours × $85 per hour = $2,295 $25,650 $27,945

    We have received no definitive data that would enable us to provide cost estimates for the on-condition related investigative and corrective actions specified in this AD.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 90-11-05, Amendment 39-6603 (89-NM-223-AD) (55 FR 20129, May 15, 1990), and adding the following new AD: 2016-18-08 Airbus: Amendment 39-18638. Docket No. FAA-2015-6550; Directorate Identifier 2013-NM-162-AD. (a) Effective Date

    This AD becomes effective October 20, 2016.

    (b) Affected ADs

    This AD replaces AD 90-11-05, Amendment 39-6603 (89-NM-223-AD) (55 FR 20129, May 15, 1990).

    (c) Applicability

    This AD applies to Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; and Model A300 B4-605R airplanes; certificated in any category; except airplanes on which Airbus Modification 6661 has been embodied during production.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by reports of cracks in the aft hinge brackets of the outer shroud box that is located in the outer wing box, which were found during routine maintenance checks, and our subsequent determination that a change in inspection compliance times is needed. We are issuing this AD to detect and correct cracking of the aft hinge brackets of the outer shroud box; such cracking could affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections

    At the applicable compliance time specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD: Do a detailed inspection for cracks and fractures of the hinge brackets of the forward and aft outer shroud boxes, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011; or Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011; as applicable. Repeat the inspection thereafter at the applicable interval specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011; or Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011; as applicable. Doing the replacement specified in paragraph (j) of this AD terminates the repetitive inspections required by this paragraph.

    (1) For Model A300 B4-601, B4-603, B4-605R, B4-620, B4-622, B4-2C, and B4-203 airplanes: Do the inspection at the later of the times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 2,000 flight hours, whichever occurs first.

    (i) Before the accumulation of 5,000 flight cycles or 10,400 flight hours since first flight, whichever occurs first.

    (ii) Within 100 flight cycles after the effective date of this AD.

    (2) For Model A300 B2-1C, B2-203, and B2K-3C airplanes: Do the inspection at the later of the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 1,000 flight hours, whichever occurs first.

    (i) Before the accumulation of 5,000 flight cycles or 5,400 flight hours since first flight, whichever occurs first.

    (ii) Within 100 flight cycles after the effective date of this AD.

    (3) For Model A300 B4-103 airplanes: Do the inspection at the later of the times specified in paragraphs (g)(3)(i) and (g)(3)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 1,300 flight hours, whichever occurs first.

    (i) Before the accumulation of 5,000 flight cycles or 6,600 flight hours since first flight, whichever occurs first.

    (ii) Within 100 flight cycles after the effective date of this AD.

    (h) Corrective Action

    If any crack or fracture is found during any inspection required by paragraph (g) of this AD: Before further flight, replace the damaged hinge bracket with a new bracket, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989; or Airbus A300-57-6011, Revision 2, dated July 10, 1989; as applicable.

    (i) Related Investigative and Corrective Actions

    If any crack or fracture is found during any inspection required by paragraph (g) of this AD: Before further flight, do a general visual inspection for secondary damage (e.g., cracks, wear damage, pitting, and gouging) in the areas specified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011; or Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011; as applicable. If any damage is found, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (1) The inner shroud-box forward attachments and the attachment brackets at the inboard end.

    (2) The inner and outer shroud-box structure, adjacent to the fractured bracket.

    (3) The top skin of the inboard flap.

    (j) Optional Terminating Action for Inspection Requirements of Paragraph (g) of This AD

    (1) Replacement of the hinge bracket, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989 (for Model A300 series airplanes); or Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989; as applicable; terminates the inspection requirements of paragraph (g) of this AD (for Model A300 B4-600 series airplanes).

    (2) Replacement of a hinge bracket before the effective date of this AD terminates the repetitive inspections required by paragraph (g) of this AD, provided that after the hinge bracket replacement, but before further flight after the effective date of this AD, a one-time detailed inspection of the forward and aft outer shroud box has been done with no cracking found, in accordance with paragraph (g) of this AD. The replacement must be done in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.

    (k) Credit for Previous Actions

    This paragraph provides credit for inspections required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using any of the applicable service information listed in paragraphs (k)(1) through (k)(8) of this AD.

    (1) Airbus Service Bulletin A300-57-142, dated December 17, 1986.

    (2) Airbus Service Bulletin A300-57-142, Revision 1, dated April 9, 1990.

    (3) Airbus Service Bulletin A300-57-142, Revision 2, dated January 16, 1991.

    (4) Airbus Service Bulletin A300-57-0142, Revision 03, dated February 22, 1999.

    (5) Airbus Service Bulletin A300-57-6010, Revision 1, dated December 14, 1990.

    (6) Airbus Service Bulletin A300-57-6010, Revision 02, dated March 30, 1998.

    (7) Airbus Service Bulletin A300-57-6010, Revision 03, dated September 16, 1998.

    (8) Airbus Service Bulletin A300-57-6010, Revision 04, dated February 22, 1999.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0181R1, dated August 20, 2013, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6550.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(3) and (n)(4) of this AD.

    (n) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011.

    (ii) Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989. Pages 1, 3, 4, 7, 10, 13, and 14 of this document are identified as Revision 2, dated July 10, 1989; pages 2 and 8 are identified as original, dated December 12, 1986; and pages 5, 6, 9, 11, 12, and 15 are identified as Revision March 19, 1987.

    (iii) Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011.

    (iv) Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989. Pages 1, 2, 5, 7, 8, 11, and 12 of this document are identified as Revision 2, dated July 10, 1989; pages 3, 4, and 13 are identified as Revision 1, dated March 19, 1987; and pages 6, 9, 10 are identified as original, dated December 17, 1986.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

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

    Issued in Renton, Washington, on August 24, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-21146 Filed 9-14-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3781; Directorate Identifier 2015-SW-048-AD; Amendment 39-18649; AD 2016-18-18] RIN 2120-AA64 Airworthiness Directives; Agusta S.p.A. Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Agusta S.p.A. (Agusta) Model A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters. This AD requires visually inspecting the tail rotor drive shaft assembly (drive shaft) for a crack. This AD was prompted by the discovery of three cracks on the drive shaft of a Model A109S helicopter. The actions of this AD are intended to detect a crack on the drive shaft to prevent failure of the driveshaft, failure of the tail rotor, and subsequent loss of helicopter control.

    DATES:

    This AD is effective October 20, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of October 20, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact AgustaWestland, Product Support Engineering, Via del Gregge, 100, 21015 Lonate Pozzolo (VA) Italy, ATTN: Maurizio D'Angelo; telephone 39-0331-664757; fax 39-0331-664680; or at http://www.agustawestland.com/technical-bulletins. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3781.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3781; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the European Aviation Safety Agency (EASA) AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Martin R. Crane, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On March 22, 2016, at 81 FR 15171, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Agusta S.p.A. Model A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters with a drive shaft part number (P/N) 109-8412-02-1 or 109-8412-02-3 installed. The NPRM proposed to require visually inspecting the drive shaft for a crack. The proposed requirements were intended to detect a crack on the drive shaft to prevent failure of the driveshaft, failure of the tail rotor, and subsequent loss of helicopter control.

    The NPRM was prompted by AD No. 2015-0054, dated March 27, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for the Model A109A with retrofit kit P/N 109-0820-27-101 installed, and Model A109A II, A109C, A109E, A109K2, A109LUH, A109S, and AW109SP helicopters.

    EASA advises that during scheduled maintenance on a Model A109S helicopter, three cracks were found on the drive shaft. An investigation could not determine the cause of the cracking but concluded it could not have been caused by fatigue. This condition, if not detected and corrected, could lead to tail rotor failure, possibly resulting in loss of helicopter control, EASA advises. EASA AD No. 2015-0054 consequently requires a one-time inspection of the drive shaft, and replacing the drive shaft if cracks are found.

    Comments

    We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (81 FR 15171, March 22, 2016).

    FAA's Determination

    These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

    Interim Action

    We consider this AD to be an interim action. The design approval holder has not determined the cause of the unsafe condition identified in this AD. If a cause is determined and actions developed to address the cause, we might consider additional rulemaking.

    Differences Between This AD and the EASA AD

    The EASA AD applies to Agusta Model A109LUH helicopters. This AD does not because this model does not have an FAA type certificate.

    Related Service Information Under 1 CFR Part 51

    We reviewed AgustaWestland Bollettino Tecnico (BT) No. 109-147 for Model A109A helicopters with retrofit kit P/N 109-0820-27-101 installed, Model A109A II, and Model A109C helicopters; BT No. 109EP-143 for Model A109E helicopters; BT No. 109K-68 for Model A109K2 helicopters; BT No. 109S-067 for Model A109S helicopters; and BT No. 109SP-094 for Model AW109SP helicopters. All of the BTs are dated March 25, 2015. AgustaWestland reports that during a scheduled servicing of an A109S helicopter, three cracks were found on drive shaft, P/N 109-8412-02-1. The BTs prescribe a one-time drive shaft inspection for cracks.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 142 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:

    • Inspecting the drive shaft requires 9 work-hours and no parts. The estimated cost is $765 per helicopter and $108,630 for the U.S. fleet.

    • Replacing the drive shaft requires no additional labor hours. Parts cost $6,082 per helicopter.

    According to Agusta service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Agusta. Accordingly, we have included all costs in our cost estimate.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.

    Regulatory Findings

    This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-18-18 Agusta S.p.A.: Amendment 39-18649; Docket No. FAA-2015-3781; Directorate Identifier 2015-SW-048-AD. (a) Applicability

    This AD applies to Agusta S.p.A. Model A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters with a tail rotor drive shaft assembly (drive shaft) part number 109-8412-02-1 or 109-8412-02-3 installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a crack in a drive shaft. This condition could result in failure of a drive shaft, failure of the tail rotor, and subsequent loss of helicopter control.

    (c) Effective Date

    This AD becomes October 20, 2016.

    (d) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (e) Required Actions

    Within 50 hours time-in-service:

    (1) Visually inspect each drive shaft in accordance with the Compliance Instructions, paragraph 4, of AgustaWestland Bollettino Tecnico (BT) No. 109-147, dated March 25, 2015; BT No. 109EP-143, dated March 25, 2015; BT No. 109K-68, dated March 25, 2015; BT No. 109S-067, dated March 25, 2015; or BT No. 109SP-094, dated March 25, 2015, as applicable for your model helicopter.

    (2) If there is a crack, replace the drive shaft before further flight.

    (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Martin R. Crane, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

    (g) Additional Information

    The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0054, dated March 27, 2015. You may view the EASA AD on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2015-3781.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: 6510, Tail Rotor Drive Shaft.

    (i) Material Incorporated by Reference

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

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

    (i) AgustaWestland Bollettino Tecnico No. 109-147, dated March 25, 2015.

    (ii) AgustaWestland Bollettino Tecnico No. 109EP-143, dated March 25, 2015.

    (iii) AgustaWestland Bollettino Tecnico No. 109K-68, dated March 25, 2015.

    (iv) AgustaWestland Bollettino Tecnico No. 109S-067, dated March 25, 2015.

    (v) AgustaWestland Bollettino TecnicoNo. 109SP-094, dated March 25, 2015.

    (3) For Agusta S.p.A. service information identified in this final rule, contact AgustaWestland, Product Support Engineering, Via del Gregge, 100, 21015 Lonate Pozzolo (VA) Italy, ATTN: Maurizio D'Angelo; telephone 39-0331-664757; fax 39-0331-664680; or at http://www.agustawestland.com/technical-bulletins.

    (4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

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

    Issued in Fort Worth, Texas, on September 1, 2016. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-21707 Filed 9-14-16; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Chapter I Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice of comparability determination for margin requirements for uncleared swaps under the laws of Japan.

    SUMMARY:

    The following is the analysis and determination of the Commodity Futures Trading Commission (“Commission”) regarding a request by the Japan Financial Services Agency (“JFSA”) that the Commission determine that laws and regulations applicable in Japan provide a sufficient basis for an affirmative finding of comparability with respect to margin requirements for uncleared swaps applicable to certain swap dealers (“SDs”) and major swap participants (“MSPs”) registered with the Commission. As discussed in detail herein, with one exception, the Commission has found the margin requirements for uncleared swaps under the laws and regulations of Japan comparable to those under the Commodity Exchange Act (“CEA”) and Commission regulations.

    DATES:

    This determination is effective September 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Eileen T. Flaherty, Director, 202-418-5326, [email protected], or Frank N. Fisanich, Chief Counsel, 202-418-5949, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION: I. Introduction

    Pursuant to section 4s(e) of the CEA,1 the Commission is required to promulgate margin requirements for uncleared swaps applicable to each SD and MSP for which there is no Prudential Regulator (collectively, “Covered Swap Entities” or “CSEs”).2 The Commission published final margin requirements for such CSEs in January 2016 (the “Final Margin Rule”).3

    1 7 U.S.C. 1 et. seq.

    2See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a Prudential Regulator must meet the margin requirements for uncleared swaps established by the applicable Prudential Regulator. 7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term “Prudential Regulator” to include the Board of Governors of the Federal Reserve System; the Office of the Comptroller of the Currency; the Federal Deposit Insurance Corporation; the Farm Credit Administration; and the Federal Housing Finance Agency). The Prudential Regulators published final margin requirements in November 2015. See Margin and Capital Requirements for Covered Swap Entities, 80 FR 74840 (Nov. 30, 2015) (“Prudential Regulators' Final Margin Rule”).

    3See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 FR 636 (Jan. 6, 2016). The Margin Rule, which became effective April 1, 2016, is codified in part 23 of the Commission's regulations. See 17 CFR 23.150 through 23.159, and 23.161. The Commission's regulations are found in chapter I of Title 17 of the Code of Federal Regulations, 17 CFR 1 et. seq.

    Subsequently, on May 31, 2016, the Commission published in the Federal Register its final rule with respect to the cross-border application of the Commission's margin requirements for uncleared swaps applicable to CSEs (hereinafter, the “Cross-Border Margin Rule”).4 The Cross-Border Margin Rule sets out the circumstances under which a CSE is allowed to satisfy the requirements under the Margin Rule by complying with comparable foreign margin requirements (“substituted compliance”); offers certain CSEs a limited exclusion from the Commission's margin requirements; and outlined a framework for assessing whether a foreign jurisdiction's margin requirements are comparable to the Final Margin Rule (“comparability determinations”). The Commission promulgated the Cross-Border Margin Rule after close consultation with the Prudential Regulators and in light of comments from and discussions with market participants and foreign regulators.5

    4See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants—Cross-Border Application of the Margin Requirements, 81 FR 34818 (May 31, 2016). The Cross-Border Margin Rule, which became effective August 1, 2016, is codified in part 23 of the Commission's regulations. See 17 CFR 23.160.

    5 In 2014, in conjunction with re-proposing its margin requirements, the Commission requested comment on three alternative approaches to the cross-border application of its margin requirements: (i) A transaction-level approach consistent with the Commission's guidance on the cross-border application of the CEA's swap provisions, see Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations, 78 FR 45292 (July 26, 2013) (the “Guidance”); (ii) an approach consistent with the Prudential Regulators' proposed cross-border framework for margin, see Margin and Capital Requirements for Covered Swap Entities, 79 FR 57348 (Sept. 24, 2014); and (iii) an entity-level approach that would apply margin rules on a firm-wide basis (without any exclusion for swaps with non-U.S. counterparties). See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 79 FR 59898 (Oct. 3, 2014). Following a review of comments received in response to this release, the Commission's Global Markets Advisory Committee (“GMAC”) hosted a public panel discussion on the cross-border application of margin requirements. See GMAC Meeting (May 14, 2015), transcript and webcast available at http://www.cftc.gov/PressRoom/Events/opaevent_gmac051415.

    On June 17, 2016, the JFSA (the “applicant”) submitted a request that the Commission determine that laws and regulations applicable in Japan provide a sufficient basis for an affirmative finding of comparability with respect to the Final Margin Rule. The applicant provided Commission staff with an updated submission on July 26, 2016. On August 18, 2016, the application was further supplemented with corrections and additional materials. The Commission's analysis and comparability determination for Japan regarding the Final Margin Rule is detailed below.

    II. Cross-Border Margin Rule A. Regulatory Objective of Margin Requirements

    The regulatory objective of the Final Margin Rule is to further the congressional mandate to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared.6 The primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can incur by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense not only in protecting the CSE but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.7

    6See 7 U.S.C. 6s(e)(3)(A).

    7See Capital Requirements for Swap Dealers and Major Swap Participants, 76 FR 27802 (May 12, 2011).

    However, the global nature of the swap market, coupled with the interconnectedness of market participants, also necessitate that the Commission recognize the supervisory interests of foreign regulatory authorities and consider the impact of its choices on market efficiency and competition, which the Commission believes are vital to a well-functioning global swap market.8 Foreign jurisdictions are at various stages of implementing margin reforms. To the extent that other jurisdictions adopt requirements with different coverage or timelines, the Commission's margin requirements may lead to competitive burdens for U.S. entities and deter non-U.S. persons from transacting with U.S. CSEs and their affiliates overseas.

    8 In determining the extent to which the Dodd-Frank swap provisions apply to activities overseas, the Commission strives to protect U.S. interests, as determined by Congress in Title VII, and minimize conflicts with the laws of other jurisdictions, consistent with principles of international comity. See Guidance, 78 FR at 45300-45301 (referencing the Restatement (Third) of Foreign Relations Law of the United States).

    B. Substituted Compliance

    To address these concerns, the Cross-Border Margin Rule provides that, subject to certain findings and conditions, a CSE is permitted to satisfy the requirements of the Final Margin Rule by instead complying with the margin requirements in the relevant foreign jurisdiction. This substituted compliance regime is intended to address the concerns discussed above without compromising the congressional mandate to protect the safety and soundness of CSEs and the stability of the U.S. financial system. Substituted compliance helps preserve the benefits of an integrated, global swap market by reducing the degree to which market participants will be subject to multiple sets of regulations. Further, substituted compliance builds on international efforts to develop a global margin framework.9

    9 In October 2011, the Basel Committee on Banking Supervision (“BCBS”) and the International Organization of Securities Commissions (“IOSCO”), in consultation with the Committee on Payment and Settlement Systems and the Committee on Global Financial Systems, formed a Working Group on Margining Requirements to develop international standards for margin requirements for uncleared swaps. Representatives of 26 regulatory authorities participated, including the Commission. In September 2013, the WGMR published a final report articulating eight key principles for non-cleared derivatives margin rules. These principles represent the minimum standards approved by BCBS and IOSCO and their recommendations to the regulatory authorities in member jurisdictions. See BCBS/IOSCO, Margin requirements for non-centrally cleared derivatives (updated March 2015) (“BCBS/IOSCO Framework”), available at http://www.bis.org/bcbs/publ/d317.pdf.

    Pursuant to the Cross-Border Margin Rule, any CSE that is eligible for substituted compliance under § 23.160 10 and any foreign regulatory authority that has direct supervisory authority over one or more CSEs and that is responsible for administering the relevant foreign jurisdiction's margin requirements may apply to the Commission for a comparability determination.11

    10See 17 CFR 23.160(c)(1)(i).

    11See 17 CFR 23.160(c)(1)(ii).

    The Cross-Border Margin Rule requires that applicants for a comparability determination provide copies of the relevant foreign jurisdiction's margin requirements 12 and descriptions of their objectives,13 how they differ from the BCBS/IOSCO Framework,14 and how they address the elements of the Commission's margin requirements.15 The applicant must identify the specific legal and regulatory provisions of the foreign jurisdiction's margin requirements that correspond to each element and, if necessary, whether the relevant foreign jurisdiction's margin requirements do not address a particular element.16

    12See 17 CFR 23.160(c)(2)(v).

    13See 17 CFR 23.160(c)(2)(i).

    14See 17 CFR 23.160(c)(2)(iii). See also 17 CFR 23.160(a)(3) (defining “international standards” as based on the BCBS-ISOCO Framework).

    15See 17 CFR 23.160(c)(2)(ii) (identifying the elements as: (A) The products subject to the foreign jurisdiction's margin requirements; (B) the entities subject to the foreign jurisdiction's margin requirements; (C) the treatment of inter-affiliate transactions; (D) the methodologies for calculating the amounts of initial and variation margin; (E) the process and standards for approving models for calculating initial and variation margin models; (F) the timing and manner in which initial and variation margin must be collected and/or paid; (G) any threshold levels or amounts; (H) risk management controls for the calculation of initial and variation margin; (I) eligible collateral for initial and variation margin; (J) the requirements of custodial arrangements, including segregation of margin and rehypothecation; (K) margin documentation requirements; and (L) the cross-border application of the foreign jurisdiction's margin regime). Section 23.160(c)(2)(ii) largely tracks the elements of the BCBS-IOSCO Framework but breaks them down into their components as appropriate to ensure ease of application.

    16See id.

    C. Standard of Review for Comparability Determinations

    The Cross-Border Margin Rule identifies certain key factors that the Commission will consider in making a comparability determination. Specifically, the Commission will consider the scope and objectives of the relevant foreign jurisdiction's margin requirements; 17 whether the relevant foreign jurisdiction's margin requirements achieve comparable outcomes to the Commission's corresponding margin requirements; 18 and the ability of the relevant regulatory authority or authorities to supervise and enforce compliance with the relevant foreign jurisdiction's margin requirements.19

    17See 17 CFR 23.160(c)(3)(i).

    18See 17 CFR 23.160(c)(3)(ii). As discussed above, the Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; therefore, the Commission expects that the relevant foreign margin requirements would conform to such Framework at minimum in order to be deemed comparable to the Commission's corresponding margin requirements.

    19See 17 CFR 23.160(c)(3)(iii). See also 17 CFR 23.160(c)(3)(iv) (indicating the Commission would also consider any other relevant facts and circumstances).

    This process reflects an outcome-based approach to assessing the comparability of a foreign jurisdiction's margin requirements. Instead of demanding strict uniformity with the Commission's margin requirements, the Commission evaluates the objectives and outcomes of the foreign margin requirements in light of foreign regulator(s)' supervisory and enforcement authority. Recognizing that jurisdictions may adopt different approaches to achieving the same outcome, the Commission will focus on whether the foreign jurisdiction's margin requirements are comparable to the Commission's in purpose and effect, not whether they are comparable in every aspect or contain identical elements.

    In keeping with the Commission's commitment to international coordination on margin requirements for uncleared derivatives, the Commission believes that the standards it has established are fully consistent with the BCBS-IOSCO Framework.20 Accordingly, where relevant to the Commission's comparability analysis, the BCBS/IOSCO Framework is discussed to explain certain internationally agreed concepts and, where appropriate, used as a baseline to compare provisions of the Final Margin Rule with those of the foreign jurisdiction.

    20 The Final Margin Rule was modified substantially from its proposed form to further align the Commission's margin requirements with the BCBS/IOSCO Framework and, as a result, the potential for conflict with foreign margin requirements should be reduced. For example, the Final Margin Rule raised the material swaps exposure level from $3 billion to the BCBS/IOSCO standard of $8 billion, which reduces the number of entities that must collect and post initial margin. See Final Margin Rule, 81 FR at 644. In addition, the definition of uncleared swaps was broadened to include DCOs that are not registered with the Commission but pursuant to Commission orders are permitted to clear for U.S. persons. See id. at 638. The Commission notes, however, that the BCBS-IOSCO Framework leaves certain elements open to interpretation (e.g., the definition of “derivative”) and expressly invites regulators to build on certain principles as appropriate. See, e.g., Element 4 (eligible collateral) (national regulators should “develop their own list of eligible collateral assets based on the key principle, taking into account the conditions of their own markets”); Element 5 (initial margin) (the degree to which margin should be protected would be affected by “the local bankruptcy regime, and would vary across jurisdictions”); Element 6 (transactions with affiliates) (“Transactions between a firm and its affiliates should be subject to appropriate regulation in a manner consistent with each jurisdiction's legal and regulatory framework.”).

    The Cross-Border Margin Rule provided a detailed discussion regarding the facts and circumstances under which substituted compliance for the requirements under the Final Margin Rule would be available and such discussion is not repeated here. CSEs seeking to rely on substituted compliance based on the comparability determinations contained herein are responsible for determining whether substituted compliance is available under the Cross-Border Margin Rule with respect to the CSE's particular status and circumstances.

    D. Conditions to Comparability Determinations

    The Cross-Border Margin Rule provides that the Commission may impose terms and conditions it deems appropriate in issuing a comparability determination.21 Specific terms and conditions with respect to margin requirements are discussed in the Commission's determinations detailed below.

    21See 17 CFR 23.160(c)(5).

    As a general condition to all determinations, however, the Commission requires notification of any material changes to information submitted to the Commission by the applicant in support of a comparability finding, including, but not limited to, changes in the relevant foreign jurisdiction's supervisory or regulatory regime. The Commission also expects that the relevant foreign regulator will enter into, or will have entered into, an appropriate memorandum of understanding or similar arrangement with the Commission in connection with a comparability determination.22

    22 Under Commission regulations 23.203 and 23.606, CSEs must maintain all records required by the CEA and the Commission's regulations in accordance with Commission regulation 1.31 and keep them open for inspection by representatives of the Commission, the United States Department of Justice, or any applicable prudential regulator. See 17 CFR 23.203, 23.606. The Commission further expects that prompt access to books and records and the ability to inspect and examine a non-U.S. CSE will be a condition to any comparability determination.

    Finally, the Commission will generally rely on an applicant's description of the laws and regulations of the foreign jurisdiction in making its comparability determination. The Commission considers an application to be a representation by the applicant that the laws and regulations submitted are in full force and effect, that the description of such laws and regulations is accurate and complete, and that, unless otherwise noted, the scope of such laws and regulations encompasses the swaps activities 23 of CSEs 24 in the relevant jurisdictions.25 Further, the Commission expects that an applicant would notify the Commission of any material changes to information submitted in support of a comparability determination (including, but not limited to, changes in the relevant supervisory or regulatory regime) as, depending on the nature of the change, the Commission's comparability determination may no longer be valid.26

    23 “Swaps activities” is defined in Commission regulation 23.600(a)(7) to mean, with respect to a registrant, such registrant's activities related to swaps and any product used to hedge such swaps, including, but not limited to, futures, options, other swaps or security-based swaps, debt or equity securities, foreign currency, physical commodities, and other derivatives. The Commission's regulations under 17 CFR part 23 are limited in scope to the swaps activities of CSEs.

    24 No CSE that is not legally required to comply with a law or regulation determined to be comparable may voluntarily comply with such law or regulation in lieu of compliance with the CEA and the relevant Commission regulation. Each CSE that seeks to rely on a comparability determination is responsible for determining whether it is subject to the laws and regulations found comparable.

    25 The Commission has provided the relevant foreign regulator(s) with opportunities to review and correct the applicant's description of such laws and regulations on which the Commission will base its comparability determination. The Commission relies on the accuracy and completeness of such review and any corrections received in making its comparability determinations. A comparability determination based on an inaccurate description of foreign laws and regulations may not be valid.

    26 78 FR at 45345.

    III. Margin Requirements for Swaps Activities in Japan

    As represented to the Commission by the applicant, margin requirements for swap activities in Japan are governed by the Financial Instruments and Exchange Act, No. 25 of 1948 (“FIEA”), covering Financial Instrument Business Operators (“FIBOs”) and Registered Financial Institutions (“RFIs”), which include regulated banks, cooperatives, insurance companies, pension funds, and investment funds. The Japanese Prime Minister delegated broad authority to implement these laws to the JFSA. Pursuant to this authority, the JFSA has promulgated the Cabinet Office Ordinance,27 Supervisory Guidelines,28 and Public Notifications.29

    27 Cabinet Office Ordinance on Financial Instruments Business (Cabinet Office Ordinance No. 52 of August 6, 2007), including supplementary provisions (“FIB Ordinance”).

    28 Comprehensive Guideline for Supervision of Major Banks, etc., Comprehensive Guidelines for Supervision of Regional Financial Institutions, Comprehensive Guideline for Supervision of Cooperative Financial Institutions, Comprehensive Guideline for Supervision of Financial Instruments Business Operators, etc., Comprehensive Guidelines for Supervision of Insurance Companies, and Comprehensive Guidelines for Supervision of Trust Companies, etc. (together, “Supervisory Guideline”).

    29 JFSA Public Notification No. 15 of March 31, 2016 (“JFSA Public Notice No. 15”); JFSA Public Notification No. 16 of March 31, 2016 (“JFSA Public Notice No. 16”); and JFSA Public Notification No. 17 of March 31, 2016 (“JFSA Public Notice No. 17”).

    These requirements supplement the requirements of FIEA with a more proscriptive direction with respect to margin requirements.30

    30 Collectively, FIEA, FIB Ordinance, Supervisory Guideline, and JFSA Public Notifications are referred to herein as the “JFSA's margin rules,” “JFSA's margin regime,” “JFSA's margin requirements” or the “laws of Japan.”

    Pursuant to Article 29 of the FIEA, any person that engages in trade activities that constitute “Financial Instruments Business”—which, among other things, includes over-the-counter transactions in derivatives (“OTC derivatives”) or intermediary, brokerage (excluding brokerage for clearing of securities) or agency services therefor 31 —must register under the FIEA as a FIBO. Banks that conduct specified activities in the course of trade, including OTC derivatives must register under the FIEA as RFIs pursuant to Article 33-2 of the FIEA. Banks registered as RFIs are required to comply with relevant laws and regulations for FIBOs regarding specified activities. Failure to comply with any relevant laws and regulations, Supervisory Guidelines, or Public Notifications would subject the applicant to potential sanctions or corrective measures.

    31See Article 2(8)(iv) of the FIEA.

    All current CSEs established under the laws of Japan are registered in Japan as RFIs or FIBOs under the supervision of the JFSA.

    IV. Comparability Analysis

    The following section describes the regulatory objective of the Commission's requirements with respect to margin for uncleared swaps imposed by the CEA and the Final Margin Rule and a description of such requirements. Immediately following a description of the requirement(s) of the Final Margin Rule for which a comparability determination was requested by the applicant, the Commission provides a description of the foreign jurisdiction's comparable laws, regulations, or rules. The Commission then provides a discussion of the comparability of, or differences between, the Final Margin Rule and the foreign jurisdiction's laws, regulations, or rules.

    A. Objectives of Margin Requirements 1. Commission Statement of Regulatory Objectives

    The regulatory objective of the Final Margin Rule is to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared. The primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can incur by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense not only in protecting the CSE but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.32

    32See Cross-Border Margin Rule, 81 FR at 34819.

    2. JFSA Statement of Regulatory Objectives

    The JFSA states that the objectives of margin requirements are the reduction of systemic risk and promotion of central clearing, as the BCBS/IOSCO Framework defines. To ensure that these objectives are achieved, the laws and regulations of Japan prescribe that financial institutions shall establish an appropriate framework for margin requirements, in line with the BCBS/IOSCO Framework. In addition, the JFSA intends to improve the risk management capabilities of financial institutions through its margin requirements and accordingly, JFSA's Supervisory Guidelines explicitly prescribe that financial institutions are required to establish a framework for margin requirements in order to manage counterparty credit risk.

    B. Products Subject to Margin Requirements

    The Commission's Final Margin Rule applies only to uncleared swaps. Swaps are defined in section 1a(47) of the CEA 33 and Commission regulations.34 “Uncleared swap” is defined for purposes of the Final Margin Rule in Commission regulation § 23.151 to mean a swap that is not cleared by a registered derivatives clearing organization, or by a clearing organization that the Commission has exempted from registration by rule or order pursuant to section 5b(h) of the Act.35

    33 7 U.S.C. 1a(47).

    34See, e.g., § 1.3(xxx), 17 CFR 1.3(xxx).

    35 17 CFR 23.151.

    In Japan, the JFSA's margin rules apply to “non-cleared OTC derivatives,” which are defined to mean:

    OTC derivatives except for those cases where Financial Instruments Clearing Organizations (including an Interoperable Clearing Organization in cases where the Financial Instruments Clearing Organization conducts Interoperable Financial Instruments Obligation Assumption Business; hereinafter the same shall apply in paragraph (11), item (i)(c)1.) or a Foreign Financial Instruments Clearing Organization meets the obligation pertaining to OTC derivatives or cases designated by Commissioner of the Financial Services Agency prescribed in Article 1-18-2 of the Order for Enforcement of the [FIEA].36

    36See Cabinet Order No. 321 of 1965; See also Article 123(1)(xxi)-5 of the FIB Ordinance. “OTC derivative” is defined in Article 2(22) of FIEA to mean:

    [T]he following transactions which are conducted in neither a Financial Instruments Market nor a Foreign Financial Instruments Market (except those specified by a Cabinet Order as those for which it is found not to hinder the public interest or protection of investors when taking into account its content and other related factors).

    (i) Transactions wherein the parties thereto promise to deliver or receive Financial Instruments (excluding those listed in Article 2(24)(v); hereinafter the same shall apply in this paragraph) or consideration for them at a fixed time in the future, and, when the resale or repurchase of the underlying Financial Instruments or other acts specified by a Cabinet Order is made, settlement thereof may be made by paying or receiving the differences;

    (ii) transactions wherein the parties thereto promise to pay or receive the amount of money calculated based on the Agreed Figure and the Actual Figure or any other similar transactions; and

    (iii) transactions wherein the parties thereto promise that one of the parties grants the other party an option to effect a transaction listed in the following items between the parties only by unilateral manifestation of the other party's intention, and the other party pays consideration for such option, or any other similar transactions:

    (a) Sales and purchase of Financial Instruments (excluding those specified in item (i)); or

    (b) any transaction listed in the preceding two items or items (v) to (vii).

    (iv) transactions wherein the parties thereto promise that one of the parties grants the other party an option to, only by unilateral manifestation of his/her intention, effect a transaction wherein the parties promise to pay or receive the amount of money calculated based on the difference between a figure which the parties have agreed in advance to use as the Agreed Figure of the Financial Indicator when such manifestation is made and the Actual Figure of the Financial Indicator at the time of such manifestation, and the other party pays the consideration for such option, or any other similar transactions;

    (v) transactions wherein the parties mutually promise that, using the amount the parties have agreed to as the principal, one of the parties will pay the amount of money calculated based on the rate of change in the agreed period of the interest rate, etc. of the Financial Instruments (excluding those listed in Article 2(24)(iii)) or of a Financial Indicator agreed with the other party, and the other party will pay the amount of money calculated based on the rate of change in the agreed period of the interest rate, etc. of the Financial Instruments (excluding those listed in Article 2(24)(iii)) or of a Financial Indicator agreed with the former party (including transactions wherein the parties promise that, in addition to the payment of such amounts, they will also pay, deliver or receive the amount of money or financial instruments that amounts to the agreed principal), or any other similar transactions;

    (vi) transactions wherein one of the parties pays money, and the other party, as the consideration therefor, promises to pay money in cases where a cause agreed by the parties in advance and listed in the following items occurs (including those wherein one of the parties promises to transfer the Financial Instruments, rights pertaining to the Financial Instruments or monetary claim (excluding claims that are Financial Instruments or rights pertaining to the Financial Instruments), but excluding those listed in item (ii) to the preceding item), or any other similar transactions; or

    (a) a cause pertaining to credit status of a juridical person or other similar cause as specified by a Cabinet Order; or

    (b) a cause which it is impossible or extremely difficult for either party to exert his/her influence on the occurrence of and which may have serious influence on business activities of the parties or other business operators as specified by a Cabinet Order (excluding those specified in (a)).

    (vii) in addition to transactions listed in the preceding items, transactions which have an economic nature similar to these transactions and are specified by a Cabinet Order as those for which it is found necessary to secure the public interest or protection of investors.

    As represented by the applicant, however, Japan has separate definitions of “OTC Derivatives” and “OTC Commodity Derivatives.” 37 Japan also has separate margin rules for OTC Commodity Derivatives that are administered by the Japan Ministry of Economy, Trade, and Industry (METI) and the Japan Ministry of Agriculture, Forestry, and Fisheries (MAFF). METI/MAFF finalized their margin requirements for non-cleared OTC Commodity Derivatives on August 1, 2016.38 While the margin rules for non-cleared OTC Derivatives and OTC Commodity Derivatives are separate, the METI/MAFF non-cleared OTC Commodity Derivative rules incorporate by reference the corresponding JFSA margin rules,39 and thus, for all purposes material to the determinations below, the METI/MAFF rules and JFSA margin rules are identical. Accordingly, for ease of reference, the discussion below refers only to the JFSA and the JFSA margin rules, but such discussion is equally applicable to METI/MAFF and the METI/MAFF non-cleared OTC Commodity Derivative margin rules. Further, CSEs may rely on the determinations set forth below regarding non-cleared OTC Derivatives subject to the JFSA margin rules equally with respect to non-cleared OTC Commodity Derivatives subject to the METI/MAFF margin rules.

    37 “OTC Commodity Derivative” is defined in Article 2, Paragraph 14 of the Commodity Derivatives Act (Act No. 239 of August 5, 1950) to mean any of the following transactions not executed on any Commodity Market, Foreign Commodity Market, or Financial Instruments Exchange Market (i.e., Financial Instruments Exchange Markets prescribed in Article 2, paragraph (17) of the FIEA (excluding transactions carried out through the facilities listed in each of the items of Article 331 of the Commodity Derivatives Act):

    (i) Buying and selling transactions where parties agree to transfer between them a Commodity and the consideration therefor at a certain time in the future and where a resale or repurchase of the Commodity subject to said buying and selling can be settled by exchanging the difference;

    (ii) Transactions where parties agree to transfer between them money calculated on the basis of the difference between the Contract Price and the Actual Price or other transactions similar thereto;

    (iii) Transactions where parties agree to transfer between them money calculated on the basis of the difference between the Agreed Figure and the Actual Figure or other transactions similar thereto;

    (iv) Transactions where parties agree that, on the manifestation of intention by one of the parties, the counterparty grants said party a right to establish any of the following transactions between the parties and said party pays the consideration therefor or other transactions similar thereto:

    (a) Transactions set forth in item (i);

    (b) Transactions set forth in item (ii);

    (c) Transactions set forth in the previous item;

    (d) Transactions set forth in item (vi);

    (v) Transactions where parties agree that the counterparty grants said party a right to establish between the parties a transaction where parties transfer between them money calculated on the basis of the difference between the price agreed between the parties in advance as a price of a Commodity pertaining to the manifestation of intention by one of the parties (including a numerical value that expresses the price level of a Commodity and a numerical value calculated otherwise on the basis of the price of a Commodity; hereinafter the same shall apply in this item) or the numerical value agreed between the parties in advance as a Commodity Index and the actual price of said Commodity or the actual numerical value of said Commodity Index prevailing at the time of said manifestation of intention and said party pays the consideration therefor, or other transactions similar thereto;

    (vi) Transactions where parties mutually agree, with respect to a Commodity for which the volume is determined by the parties, that one party will pay to the counterparty money calculated on the basis of the rate of change in the price of said Commodity or a Commodity Index for a period agreed between the parties in advance and that the latter will pay to the former money calculated on the basis of the rate of change in the price of said Commodity or a Commodity Index for a period agreed between the parties in advance, or other transactions similar thereto;

    (vii) In addition to transactions listed in the preceding items, transactions with an economic nature similar thereto that are specified by Cabinet Order as those for which it is considered necessary to secure the public interests or protection of parties thereto.

    38See Ministry of Agriculture, Forestry and Fisheries/Ministry of Economy, Trade and Industry Public Notification No. 2 of August 1, 2016; Ordinance for Enforcement of the Commodity Derivatives Act (Ordinance of the Ministry of Agriculture, Forestry and Fisheries and the Ministry of Economy, Trade and Industry No. 3 of February 22, 2005); Supplementary Provisions of Ordinance for Enforcement of the Commodity Derivatives Act No. 3 of February 22, 2005; and Basic Supervision Guidelines of Commodity Derivatives Business Operators, etc.

    39See id.

    While it is beyond the scope of this comparability determination to definitively map any differences between the definitions of “swap” and “uncleared swap” under the CEA and Commission regulations and Japan's definitions of “OTC Derivative,” “OTC Commodity Derivative,” “non-cleared OTC Derivative,” and “non-cleared OTC Commodity Derivative,” the Commission believes that such definitions largely cover the same products and instruments.

    However, because the definitions are not identical, the Commission recognizes the possibility that a CSE may enter into a transaction that is an uncleared swap as defined in the CEA and Commission regulations, but that is not a non-cleared OTC Derivative as defined under the laws of Japan. In such cases, the Final Margin Rule would apply to the transaction but the JFSA's margin rules would not apply and thus, substituted compliance would not be available. The CSE could not choose to comply with the JFSA's margin rules 40 in place of the Final Margin Rule.

    40 Or the METI/MAFF margin rules, as discussed above.

    Likewise, if a transaction is a non-cleared OTC derivative as defined under the laws of Japan but not an uncleared swap subject to the Final Margin Rule, a CSE could not choose to comply with the Final Margin Rule pursuant to this determination. CSEs are solely responsible for determining whether a particular transaction is both an uncleared swap and a non-cleared OTC derivative before relying on substituted compliance under the comparability determinations set forth below.

    C. Entities Subject to Margin Requirements

    As stated previously, the Commission's Final Margin Rule and Cross-Border Margin Rule apply only to CSEs, i.e., SDs and MSPs registered with the Commission for which there is not a Prudential Regulator.41 Thus, only such CSEs may rely on the determinations herein for substituted compliance, while CSEs for which there is a Prudential Regulator must look to the determinations of the Prudential Regulators. The Commission has consulted with the Prudential Regulators in making these determinations.

    41See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a Prudential Regulator must meet the margin requirements for uncleared swaps established by the applicable Prudential Regulator. 7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term “Prudential Regulator” to include the Board of Governors of the Federal Reserve System; the Office of the Comptroller of the Currency; the Federal Deposit Insurance Corporation; the Farm Credit Administration; and the Federal Housing Finance Agency). The Prudential Regulators published final margin requirements in November 2015. See Prudential Regulators' Final Margin Rule, 80 FR 74840 (Nov. 30, 2015).

    CSEs are not required to collect and/or post margin with every uncleared swap counterparty. Under the Final Margin Rule, the initial margin obligations of CSEs apply only to uncleared swaps with counterparties that meet the definition of “covered counterparty” in § 23.151.42 Such definition provides that a “covered counterparty” is a counterparty that is a financial end user 43 with material swaps exposure 44 or a swap entity 45 that enters into a swap with a CSE. The variation margin obligations of CSEs under the Final Margin Rule apply more broadly. Such obligations apply to counterparties that are swap entities and all financial end users, not just those with “material swaps exposure.” 46

    42See 17 CFR 23.152.

    43See definition of “Financial end user” in 17 CFR 23.150.

    44See 17 CFR 23.150, which states that “material swaps exposure” for an entity means that the entity and its margin affiliates have an average daily aggregate notional amount of uncleared swaps, uncleared security-based swaps, foreign exchange forwards, and foreign exchange swaps with all counterparties for June, July and August of the previous calendar year that exceeds $8 billion, where such amount is calculated only for business days. An entity shall count the average daily aggregate notional amount of an uncleared swap, an uncleared security-based swap, a foreign exchange forward, or a foreign exchange swap between the entity and a margin affiliate only one time. For purposes of this calculation, an entity shall not count a swap that is exempt pursuant to 17 CFR 23.150(b) or a security-based swap that qualifies for an exemption under section 3C(g)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 78c-3(g)(4)) and implementing regulations or that satisfies the criteria in section 3C(g)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78-c3(g)(4)) and implementing regulations.

    45 “Swap entity” is defined in 17 CFR 23.150 as a person that is registered with the Commission as a swap dealer or major swap participant pursuant to the Act.

    46See 17 CFR 23.153.

    As represented by the JFSA, the JFSA's margin rules cover all types of financial institutions, such as prudentially regulated banks, cooperatives, securities companies, insurance companies, pension funds, and investment funds.47 However, similar to the Final Margin Rule's definitions of “covered counterparty” and “financial end-user,” the JFSA's margin regime does not apply to non-financial institutions nor to financial institutions below certain thresholds of activity in OTC derivatives.48 As discussed above, CSEs are financial institutions for purposes of the JFSA's margin rules.

    47See FIB Ordinance Article 123(10) and (11). Specifically, “covered entities” under the JFSA's margin rules include Type 1 FIBOs, RFIs, insurance companies that are RFIs and trust accounts that are RFIs. Covered entities also include Shoko Chukin Bank, the Development Bank of Japan, Shinkin Central Bank, and the Norinchukin Bank. Covered entities must post and collect initial and variation margin to and from other covered entity counterparties.

    48See FIB Ordinance, Article 123(10)(iv) and (11)(iv). In general, the threshold for variation margin is whether the average total amount of the notional principal of OTC Derivatives for a one‐year period from April two years before the year in which calculation is required (or one year if calculated in December) exceeds JPY 300 bn. In general, the threshold for initial margin is whether the average month‐end aggregate notional amount of non‐cleared OTC derivatives, non‐cleared OTC commodity derivatives, and physically‐settled FX forwards and FX swaps of a consolidated group (excluding inter-affiliate transactions) for March, April, and May one year before the year in which calculation is required exceeds JPY 1.1 trillion. No margin is required for OTC Derivatives with non-covered entities (i.e., non-financial end-users). However, FIBOs and RFIs that fall below the threshold for variation margin are still required by the Supervisory Guidelines to establish appropriate risk management policies and procedures that require exchange of variation margin and appropriate documentation. See Supervisory Guideline Section IV—2-4(4)(i).

    Given the definitional differences and differences in activity thresholds with respect to the scope of application of the Final Margin Rule and the JFSA's margin requirements, the Commission notes the possibility that the Final Margin Rule and the JFSA's margin rules may not apply to every uncleared swap that a CSE may enter into with a Japanese counterparty. For example, it appears possible that a financial end user with “material swaps exposure” would meet the definition of “covered counterparty” under the Final Margin Rule (and thus the initial and variation margin requirements) while at the same time fall under the JFSA's OTC Derivative activity threshold and be subject only to variation margin requirements. It may also be possible that the Final Margin Rule's definition of “financial end-user” could capture an entity that is a non-financial end-user under the JFSA's margin regime.

    With these differences in scope in mind, the Commission reiterates that no CSE may rely on substituted compliance unless it and its transaction are subject to both the Final Margin Rule and the JFSA's margin rules; 49 a CSE may not voluntarily comply with the JFSA's margin rules where such law does not otherwise apply. Likewise, a CSE that is not seeking to rely on substituted compliance should understand that the JFSA's margin rules may apply to its counterparty irrespective of the CSE's decision to comply with the Final Margin Rule.

    49 Or the METI/MAFF margin rules, as discussed above.

    D. Treatment of Inter-Affiliate Derivative Transactions

    The BCBS/IOSCO Framework recognizes that the treatment of inter-affiliate derivative transactions will vary between jurisdictions. Thus, the BCBS/IOSCO Framework does not set standards with respect to the treatment of inter-affiliate transactions. Rather, it recommends that regulators in each jurisdiction review their own legal frameworks and market conditions and put in place margin requirements applicable to inter-affiliate transactions as appropriate.50

    50See BCBS/IOSCO Framework, Element 6: Treatment of transactions with affiliates.

    1. Commission Requirements for Treatment of Inter-Affiliate Transactions

    The Commission determined through its Final Margin Rule to provide rules for swaps between “margin affiliates.” The definition of margin affiliates provides that a company is a margin affiliate of another company if: (1) Either company consolidates the other on a financial statement prepared in accordance with U.S. Generally Accepted Accounting Principles, the International Financial Reporting Standards, or other similar standards; (2) both companies are consolidated with a third company on a financial statement prepared in accordance with such principles or standards; or (3) for a company that is not subject to such principles or standards, if consolidation as described in (1) or (2) would have occurred if such principles or standards had applied.51

    51See 17 CFR 23.151.

    With respect to swaps between margin affiliates, the Final Margin Rule, with one exception explained below, provides that a CSE is not required to collect initial margin 52 from a margin affiliate provided that the CSE meets the following conditions: (i) The swaps are subject to a centralized risk management program that is reasonably designed to monitor and to manage the risks associated with the inter-affiliate swaps; and (ii) the CSE exchanges variation margin with the margin affiliate.53

    52 “Initial margin” is margin exchanged to protect against a potential future exposure and is defined in 17 CFR 23.151 to mean the collateral, as calculated in accordance with 17 CFR 23.154 that is collected or posted in connection with one or more uncleared swaps.

    53See 17 CFR 23.159(a).

    In an exception to the foregoing general rule, the Final Margin Rule does require CSEs to collect initial margin from non-U.S. affiliates that are financial end users that are not subject to comparable initial margin collection requirements on their own outward-facing swaps with financial end users.54 This provision is an important anti-evasion measure. It is designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties. For example, suppose that an unregistered non-U.S. affiliate of a CSE enters into a swap with a financial end user and does not collect initial margin. Suppose further that the affiliate then enters into a swap with the CSE. Effectively, the risk of the swap with the third party would have been passed to the CSE without any initial margin. The rule would require this affiliate to post initial margin with the CSE in such cases. The rule would further require that the CSE collect initial margin even if the affiliate routed the trade through one or more other affiliates.55

    54See 17 CFR 23.159(c).

    55See id.

    The Commission has stated that its inter-affiliate initial margin requirement is consistent with its goal of harmonizing its margin rules as much as possible with the BCBS/IOSCO Framework. Such Framework, for example, states that the exchange of initial and variation margin by affiliated parties “is not customary” and that initial margin in particular “would likely create additional liquidity demands.” 56 With an understanding that many authorities, such as those in Europe and Japan, are not expected to require initial margin for inter-affiliate swaps, the Commission recognized that requiring the posting and collection of initial margin for inter- affiliate swaps generally would be likely to put CSEs at a competitive disadvantage to firms in other jurisdictions.

    56See BCBS/IOSCO Framework, Element 6: Treatment of transactions with affiliates.

    The Final Margin Rule however, does require CSEs to exchange variation margin with affiliates that are SDs, MSPs, or financial end users (as is also required under the Prudential Regulators' rules).57 The Commission believes that marking open positions to market each day and requiring the posting or collection of variation margin reduces the risks of inter-affiliate swaps.

    57See 17 CFR 23.159(b), Prudential Regulators' Final Margin Rule, 80 FR at 74909.

    2. Requirement for Treatment of Inter-Affiliate Derivatives Under the Laws of Japan

    Under Article 123(10) and (11) of Japan's FIB Ordinance, the JFSA's margin requirements do not apply to OTC derivative transactions between counterparties that are “Consolidated Companies” as defined in the Ministry of Finance of Japan's Ordinance on Terminology, Forms, and Preparation Methods of Consolidated Financial Statements.58 Such “Consolidated Companies” are defined generally in keeping with the Commission's definition of “margin affiliate” for purposes of the Final Margin Rule, discussed above.

    58See Ordinance of the Ministry of Finance No. 28 of October 30, 1976.

    However, in mitigation of not requiring margin between Consolidated Companies, the JFSA has explained that its capital requirements for FIBOs/RFIs apply not only on a consolidated basis but also on individual, non-consolidated basis. Thus, a CSE that is a FIBO/RFI is required to hold enough capital to cover exposures under non-cleared OTC derivatives to individual entities in the same consolidated group. Such capital requirement can be reduced if the CSE collects initial and/or variation margin for such inter-affiliate transactions.

    In addition to this, the JFSA has explained that its supervision of FIBOs/RFIs is a principles-based approach, and, in accordance with this approach, the JFSA's “Guideline for Financial Conglomerates Supervision” requires financial holding companies and parent companies to measure, monitor, and manage the risks caused by inter-affiliate transactions. Further, the JFSA's “Inspection manual for financial holding companies” requires financial holding companies to establish a robust governance framework and risk management system at a centralized group level, that would, in operation, require management of the risks caused by inter-affiliate transactions. Based on the foregoing, the JFSA has emphasized that it is not necessary for it to require the risk management procedures of FIBOs/RFIs applicable to inter-affiliate transactions to rely on margin requirements only. Rather, taking into account capital requirements and the JFSA's supervision and inspection programs, JFSA represents that it ensures the safety and soundness of FIBOs/RFIs as a whole.

    3. Commission Determination

    Having compared the outcomes of the JFSA's margin requirements applicable to inter-affiliate derivatives to the outcomes of the Commission's corresponding margin requirements applicable to inter-affiliate swaps, the Commission finds that the treatment of inter-affiliate transactions under the Final Margin Rule and under the JFSA's margin requirements are not comparable.

    A CSE entering into a transaction with a consolidated affiliate under the Final Margin Rule would be required to exchange variation margin in accordance with §§ 23.151 through 23.161, and in certain circumstances, collect initial margin in accordance with § 23.159(c). Where such CSE and its counterparty are also subject to the JFSA's margin requirements, and qualify as “Consolidated Companies,” the JFSA's margin requirements would not require the CSE to post or collect any form of margin.

    While not disputing the JFSA's explanation that its general oversight of the risk management practices of Consolidated Companies adequately addresses the risk of inter-affiliate transactions, the Commission reiterates its view that the inter-affiliate margin requirements are an important anti-evasion measure designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties.

    For this reason, the Commission finds that the outcome under the JFSA's margin rules is not comparable to the outcome under the Final Margin Rule and accordingly CSEs must comply with the Final Margin Rule with respect to inter-affiliate swaps.

    E. Methodologies for Calculating the Amounts of Initial and Variation Margin

    As an overview, the methodologies for calculating initial and variation margin as agreed under the BCBS/IOSCO Framework state that the margin collected from a counterparty should (i) be consistent across entities covered by the requirements and reflect the potential future exposure (initial margin) and current exposure (variation margin) associated with the particular portfolio of non-centrally cleared derivatives, and (ii) ensure that all counterparty risk exposures are covered fully with a high degree of confidence.

    With respect to the calculation of initial margin, as a minimum the BCBS/IOSCO Framework generally provides that:

    • Initial margin requirements will not apply to counterparties that have less than EUR 8 billion of gross notional in outstanding derivatives.

    • Initial margin may be subject to a EUR 50 million threshold applicable to a consolidated group of affiliated counterparties.

    • All margin transfers between parties may be subject to a de-minimis minimum transfer amount not to exceed EUR 500,000.

    • The potential future exposure of a non-centrally cleared derivative should reflect an extreme but plausible estimate of an increase in the value of the instrument that is consistent with a one-tailed 99% confidence interval over a 10-day horizon, based on historical data that incorporates a period of significant financial stress.

    • The required amount of initial margin may be calculated by reference to either (i) a quantitative portfolio margin model or (ii) a standardized margin schedule.

    • When initial margin is calculated by reference to an initial margin model, the period of financial stress used for calibration should be identified and applied separately for each broad asset class for which portfolio margining is allowed.

    • Models may be either internally developed or sourced from the counterparties or third-party vendors but in all such cases, models must be approved by the appropriate supervisory authority.

    • Quantitative initial margin models must be subject to an internal governance process that continuously assesses the value of the model's risk assessments, tests the model's assessments against realized data and experience, and validates the applicability of the model to the derivatives for which it is being used.

    • An initial margin model may consider all of the derivatives that are approved for model use that are subject to a single legally enforceable netting agreement.

    • Initial margin models may account for diversification, hedging, and risk offsets within well-defined asset classes such as currency/rates, equity, credit, or commodities, but not across such asset classes and provided these instruments are covered by the same legally enforceable netting agreement and are approved by the relevant supervisory authority.

    • The total initial margin requirement for a portfolio consisting of multiple asset classes would be the sum of the initial margin amounts calculated for each asset class separately.

    • Derivatives for which a firm faces zero counterparty risk require no initial margin to be collected and may be excluded from the initial margin calculation.

    • Where a standardized initial margin schedule is appropriate, it should be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under the BCBS/IOSCO Framework 59 and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives in a legally enforceable netting set. The BCBS/IOSCO Framework provides the following standardized margin rates:

    59 The BCBS/IOSCO Framework provides standardized margin rates, as set out in the table accompanying the text.

    Asset class Initial margin
  • requirement
  • (% of notional
  • exposure)
  • Credit: 0-2 year duration 2 Credit: 2-5 year duration 5 Credit 5+ year duration 10 Commodity 15 Equity 15 Foreign exchange 6 Interest rate: 0-2 year duration 1 Interest rate: 2-5 year duration 2 Interest rate: 5+ year duration 4 Other 15

    • For a regulated entity that is already using a schedule-based margin to satisfy requirements under its required capital regime, the appropriate supervisory authority may permit the use of the same schedule for initial margin purposes, provided that it is at least as conservative.

    • The choice between model- and schedule-based initial margin calculations should be made consistently over time for all transactions within the same well defined asset class.

    • Initial margin should be collected at the outset of a transaction, and collected thereafter on a routine and consistent basis upon changes in measured potential future exposure, such as when trades are added to or subtracted from the portfolio.

    • In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of initial margin in a timely fashion.

    With respect to the calculation of variation margin, as a minimum the BCBS/IOSCO Framework generally provides that:

    • The full amount necessary to fully collateralize the mark-to-market exposure of the non-centrally cleared derivatives must be exchanged.

    • Variation margin should be calculated and exchanged for derivatives subject to a single, legally enforceable netting agreement with sufficient frequency (e.g., daily).

    • In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of variation margin in a timely fashion.

    1. Commission Requirement for Calculation of Initial Margin

    In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of initial margin, the Commission's Final Margin Rule generally provides that:

    • Initial margin is intended to address potential future exposure, i.e., in the event of a counterparty default, initial margin protects the non-defaulting party from the loss that may result from a swap or portfolio of swaps, during the period of time needed to close out the swap(s).60

    60See Final Margin Rule, 81 FR at 683.

    • Potential future exposure is to be an estimate of the one-tailed 99% confidence interval for an increase in the value of the uncleared swap or netting portfolio of uncleared swaps due to an instantaneous price shock that is equivalent to a movement in all material underlying risk factors, including prices, rates, and spreads, over a holding period equal to the shorter of 10 business days or the maturity of the swap or netting portfolio.61

    61See 17 CFR 23.154(b)(2)(i).

    • The required amount of initial margin may be calculated by reference to either (i) a risk-based margin model or (ii) a table-based method.62

    62See 17 CFR 23.154(a)(1)(i) and (ii).

    • All data used to calibrate the initial margin model shall incorporate a period of significant financial stress for each broad asset class that is appropriate to the uncleared swaps to which the initial margin model is applied.63

    63See 17 CFR 23.154(b)(2)(ii).

    • CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.64

    64See 17 CFR 23.154(b)(1)(i).

    • An initial margin model may calculate initial margin for a netting portfolio of uncleared swaps covered by the same eligible master netting agreement.65

    65See 17 CFR 23.154(b)(2)(v).

    • An initial margin model may reflect offsetting exposures, diversification, and other hedging benefits for uncleared swaps that are governed by the same eligible master netting agreement by incorporating empirical correlations within the following broad risk categories, provided the CSE validates and demonstrates the reasonableness of its process for modeling and measuring hedging benefits: Commodity, credit, equity, and foreign exchange or interest rate.66

    66See id.

    • Empirical correlations under an eligible master netting agreement may be recognized by the model within each broad risk category, but not across broad risk categories.67

    67See id.

    • If the initial margin model does not explicitly reflect offsetting exposures, diversification, and hedging benefits between subsets of uncleared swaps within a broad risk category, the CSE shall calculate an amount of initial margin separately for each subset of uncleared swaps for which such relationships are explicitly recognized by the model and the sum of the initial margin amounts calculated for each subset of uncleared swaps within a broad risk category will be used to determine the aggregate initial margin due from the counterparty for the portfolio of uncleared swaps within the broad risk category.68

    68See 17 CFR 23.154(b)(2)(vi).

    • Where a risk-based model is not used, initial margin must be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under § 23.154(c)(i) 69 and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives under the same eligible master netting agreement.70

    69 The standardized margin rates provided in 17 CFR 23.154(c)(i) are, in all material respects, the same as those provided under the BCBS/IOSCO Framework. See supra note 59.

    70See 17 CFR 23.154(c).

    • A CSE shall not be deemed to have violated its obligation to collect or post initial margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).71

    71See 17 CFR 23.152(d)(2)(i).

    2. Commission Requirements for Calculation of Variation Margin

    In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of variation margin, the Commission's Final Margin Rule generally provides that:

    • Each business day, a CSE must calculate variation margin amounts for itself and for each counterparty that is an SD, MSP, or financial end-user. Such variation margin amounts must be equal to the cumulative mark-to-market change in value to the CSE of each uncleared swap, adjusted for any variation margin previously collected or posted with respect to that uncleared swap.72

    72See 17 CFR 23.155(a).

    • Variation margin must be calculated using methods, procedures, rules, and inputs that to the maximum extent practicable rely on recently-executed transactions, valuations provided by independent third parties, or other objective criteria.73

    73See id.

    • CSEs may comply with variation margin requirements on an aggregate basis with respect to uncleared swaps that are governed by the same eligible master netting agreement.74

    74See 17 CFR 23.153(d)(1).

    • A CSE shall not be deemed to have violated its obligation to collect or post variation margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).75

    75See 17 CFR 23.153(e)(2)(i).

    3. Japan Requirements for Calculation of Initial Margin

    • Potential future exposure is margin to be posted as deposits corresponding to a reasonable estimate of the amount of expenses or losses that may occur in the future with regard to non-cleared OTC derivatives.76

    76 FIB Ordinance Article 123(1)(xxi)-6.

    • In cases where potential future exposure cannot be calculated by a method of using a quantitative calculation model, FIBOs/RFIs are required to calculate potential future exposure for the non-cleared OTC derivatives by a method of using a standardized margin schedule.77

    77 JFSA Public Notice No. 15, Article 1(3).

    • When calculating potential future exposure using a quantitative calculation model, FIBOs/RFIs shall use a one-tailed 99% confidence interval and set a margin period of risk for non-cleared OTC derivatives of not less than 10 business days.78

    78 JFSA Public Notice No. 15, Article 3(1).

    • Where calculating potential future exposure by a method of using a quantitative calculation model, FIBOs/RFIs must use historical data which satisfies the following requirements for each category of non-cleared OTC derivatives for which any of commodity, credit, equity, and foreign exchange or interest rate is the major cause of changes in mark-to-market: (i) Based on an observation period of at least one year and not exceeding five years; (ii) to contain a stress period; (iii) to contain the latest market data; (iv) to be equally weighted; and (v) to be updated at least once a year.79

    79 JFSA Public Notice No. 15, Article 4.

    • The quantitative calculation models of FIBOs/RFIs must capture non-linear risks, basis risks, and material risks that may have impact on the value of the exposure.80

    80 JFSA Public Notice No. 15, Article 5(1).

    • FIBOs/RFIs must file notice with the JFSA of an intention to use a quantitative calculation model to estimate an amount of potential future exposure, including a description of the model's methodology and structure, the model's compliance with JFSA margin rules, and the policies and procedures of a “model control unit”.81

    81 JFSA Public Notice No. 15, Article 1(2).

    • FIBOs/RFIs must conduct back testing of the quantitative calculation model against changes in the mark-to-market value of non-cleared OTC derivatives that occurred during a period equivalent to a holding period of not less than 10 business days.82

    82 JFSA Public Notice No. 15, Article 6(1)(iii).

    • When calculating potential future exposure for non-cleared OTC derivatives only by a method of using a quantitative calculation model, FIBOs/RFIs may conduct a calculation for each master netting agreement meeting the definition of such as prescribed in Article 2, paragraph (5) of the Act on Close-out Netting of Specified Financial Transaction Conducted by Financial Institutions. (Act No. 108 of 1998).83

    83 JFSA Public Notice No. 15, Article 2(1).

    • Potential future exposure calculated by FIBOs/RFIs by a method of using a quantitative calculation model shall be the sum of amounts calculated for each category of transaction for which any of the following is the major cause of changes in mark-to-market value, with regard to all non-cleared OTC derivatives conducted by the FIBOs: Commodity, credit, equity, and foreign exchange or interest rate.84

    84 JFSA Public Notice No. 15, Article 3(2).

    • FIBOs/RFIs may account for the effects of risk offsets, diversification, and hedging within each broad category of transactions for which commodity, credit, equity, and foreign exchange or interest rates is the major cause of changes in mark-to-market, but not across such risk categories.85

    85 JFSA Public Notice No. 15, Article 3(3).

    • Where a quantitative calculation model is not used, FIBOs/RFIs must compute potential future exposure by multiplying the gross notional size of a non-cleared OTC derivative by the standardized margin schedule set forth in JFSA's Public Notification No. 15 86 and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives under the same master netting agreement.

    86 The standardized margin rates provide in JFSA Public Notification No. 15 of March 31, 2016, Article 9(2) are, in all material respects, the same as those provided under the BCBS/IOSCO Framework. See supra note 59.

    • FIBOs/RFIs are required to have documentation with each uncleared OTC derivative counterparty that, among other things, identifies dispute resolution measures applicable to margin disputes for uncleared OTC derivatives.87

    87See Article 37-3 of the FIEA and Article 99 of the FIB Ordinance.

    4. Japan Requirements for Calculation of Variation Margin

    • FIBOs/RFIs must calculate on each business day for each counterparty the total amount of the mark-to-market for non-cleared OTC Derivatives and the total amount of the mark-to-market of collateral collected or posted as variation margin with respect to the counterparty.88

    88 FIB Ordinance Article 123(1)(xxi)-5(a).

    • FIBOs/RFIs may comply with variation margin requirements on an aggregate basis with respect to uncleared OTC derivatives that are governed by the same master netting agreement.89

    89See FIB Ordinance Article 123(1)(xxi)-5(a).

    • FIBOs/RFIs are required to have documentation with each uncleared OTC derivative counterparty that, among other things, identifies dispute resolution measures applicable to margin disputes for uncleared OTC derivatives.90

    90See Supervisory Guideline Section IV-2-4(4)(i)(A) and (ii)(A).

    5. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission has determined that the amounts of initial and variation margin calculated under the methodologies required under the JFSA's margin rules would be similar to those calculated under the methodologies required under the Final Margin Rule. Specifically, under the Final Margin Rule and the JFSA's margin rules:

    • The definitions of initial and variation margin are similar, including the description of potential future exposure agreed under the BCBS/IOSCO Framework;

    • Margin models and/or a standardized margin schedule may be used to calculate initial margin;

    • Criteria for historical data to be used in initial margin models is similar;

    • Initial margin models must be submitted for review by a regulator prior to use;

    • Eligibility for netting is similar;

    • Correlations may be recognized within broad risk categories, but not across such risk categories;

    • The required method of calculating initial margin using standardized margin rates is essentially identical; and

    • The proscribed standardized margin rates are essentially identical.

    Accordingly, the Commission finds that the methodologies for calculating the amounts of initial and variation margin for uncleared OTC derivatives under the laws of Japan are comparable in outcome to those of the Final Margin Rule.

    F. Process and Standards for Approving Margin Models

    Pursuant to the BCBS/IOSCO Framework, initial margin models may be either internally developed or sourced from counterparties or third-party vendors but in all such cases, models must be approved by the appropriate supervisory authority.91

    91See BCBS/IOSCO Framework Requirement 3.3.

    1. Commission Requirement for Margin Model Approval

    In keeping with the BCBS/IOSCO Framework, the Final Margin Rule generally requires:

    • CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.92

    92See 17 CFR 23.154(b)(1)(i).

    • The Commission or a registered futures association will approve models that demonstrate satisfaction of all of the requirements for an initial margin model set forth above in Section IV(E)(2), in addition to the requirements for annual review; 93 control, oversight, and validation mechanisms; 94 documentation; 95 and escalation procedures.96

    93See 17 CFR 23.154(b)(4), discussed further below.

    94See 17 CFR 23.154(b)(5), discussed further below.

    95See 17 CFR 23.154(b)(6), discussed further below.

    96See 17 CFR 23.154(b)(7), discussed further below.

    • CSEs must notify the Commission and the registered futures association in writing 60 days prior to, extending the use of an initial margin model to an additional product type; making any change to the model that would result in a material change in the CSE's assessment of initial margin requirements; or making any material change to modeling assumptions.

    • The Commission or the registered futures association may rescind its approval, or may impose additional conditions or requirements if the Commission or the registered futures association determines, in its discretion, that a model no longer complies with the requirements for an initial margin model summarized above in Section IV(E)(2).

    2. Japan Requirements for Approval of Margin Models

    In keeping with the BCBS/IOSCO Framework, the JFSA's margin rules generally require:

    • FIBOs/RFIs must file notice with the JFSA of an intention to use a quantitative calculation model to estimate an amount of potential future exposure, including a description of the model's methodology and structure, the model's compliance with JFSA rules for use of quantitative calculation models summarized above in Section IV(E)(4), and the policies and procedures of a “model control unit”.97

    97 JFSA Public Notice No. 15, Article 1(2) and Article 7. The requirements for a model control unit are discussed in Section IV(I) below.

    • FIBOs/RFIs must notify the JFSA without delay of a change in any matters set out in the notice of an intention to use a quantitative calculation model, and any failure to comply with the JFSA rules for use of a quantitative calculation model summarized above in Section IV(E)(4).98

    98See JFSA Public Notice No. 15, Article 8(1).

    • FIBOs/RFIs must establish a proper management framework to use a quantitative calculation model and the JFSA supervises compliance with the model requirements.99

    99See Supervisory Guideline Section IV-2-4(4)(ii)(C).

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission has determined that the requirements for submission of margin models to the JFSA, in the case of FIBOs/RFIs, are comparable to and as comprehensive as the regulatory approval requirements of the Final Margin Rule. Specifically, the notice of an intent to use a quantitative calculation model required under the JFSA's margin rules, prior to its use, must contain a comprehensive explanation and evaluation of the proposed model that is comparable in all material respects to the approval procedures required under the Final Margin Rule. While the Commission recognizes that a notice of intent to the JFSA is not the same as requiring a specific approval from a regulator, the JFSA has represented that it would use its supervisory powers to prohibit the use of an inadequate quantitative calculation model. In light of this representation by the JFSA, the Commission finds that such requirements under the laws of Japan are comparable to those of the Final Margin Rule.

    G. Timing and Manner for Collection or Payment of Initial and Variation Margin 1. Commission Requirement for Timing and Manner for Collection or Payment of Initial and Variation Margin

    With respect to the timing and manner for collection or posting of initial margin, the Final Margin Rule generally provides that:

    • Where a CSE is required to collect initial margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to hold initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires.

    • Where a CSE is required to post initial margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires.

    • Required initial margin amounts must be posted and collected by CSEs on a gross basis (i.e., amounts to be posted may not be set-off against amounts to be collected from the same counterparty).

    With respect to the timing and manner for collection or posting of variation margin, the Final Margin Rule generally provides that:

    • Where a CSE is required to collect variation margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to collect the required variation margin amount, if any, each business day as re-calculated each business day until such uncleared swap is terminated or expires.100

    100See 17 CFR 23.153(a).

    • Where a CSE is required to post variation margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post the required variation margin amount, if any, each business day as re-calculated each business day until such uncleared swap is terminated or expires.101

    101See 17 CFR 23.153(b).

    With respect to both initial and variation margin, a CSE shall not be deemed to have violated its obligation to collect or post margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).102

    102See 17 CFR 23.153(e)(2)(i).

    2. Japan Requirements for Timing and Manner for Collection of Initial and Variation Margin

    With respect to the timing and manner for collection or posting of initial margin, the JFSA's margin rules generally provide that:

    • Initial margin must be calculated upon execution, termination, or modification of a non-cleared OTC derivative.103

    103See FIB Ordinance Article 123(1)(xxi)-6(a). As represented by the JFSA, this requirement is interpreted to mean that IM shall be recalculated in any of the following circumstances:

    (a) A new contract is executed with a counterparty;

    (b) An existing contract with a counterparty expires;

    (c) A relationship of rights pertaining to non-cleared OTC derivatives is changed;

    (d) Recalibration is deemed necessary due to fluctuations of markets or other grounds or

    (e) One month has elapsed since the latest recalculation.

    • Initial margin must be calculated when necessary based on market changes.104

    104See id.

    • In any event, initial margin must be calculated no later than one month after the last calculation of initial margin.105

    105See id.

    • Where FIBOs/RFIs are required to collect initial margin, it must call for the initial margin amount immediately after calculation and collect such amount as soon as practicable.106

    106See FIB Ordinance Article 123(1)(xxi)-6(b) and (c).

    • Where FIBOs/RFIs are required to post initial margin, it must be posted as soon as practicable after it receives a call for an initial margin amount.107

    107See FIB Ordinance Article 123(1)(xxi)-6(f).

    • Required initial margin amounts must be posted and collected by FIBOs/RFIs on a gross basis (i.e., amounts to be posted may not be set-off against amounts to be collected from the same counterparty).

    With respect to the timing and manner for collection or posting of variation margin, the JFSA's margin rules generally provide that:

    • FIBOs/RFIs are required to calculate the variation margin amount each business day.108

    108See FIB Ordinance Article 123(1)(xxi)-5(a).

    • Where FIBOs/RFIs are required to collect a variation margin amount, it must be called for immediately and collected as soon as practicable.109

    109See FIB Ordinance Article 123(1)(xxi)-5(b) and (c).

    • Where FIBOs/RFIs are required to post a variation margin amount, it must be posted as soon as practicable.110

    110See FIB Ordinance Article 123(1)(xxi)-5(d).

    3. Commission Determination

    Having compared the JFSA's margin requirements applicable to the timing and manner of collection and payment of initial and variation margin to the Commission's corresponding margin requirements, the Commission finds that the JFSA's margin requirements are, despite apparent differences in certain respects, comparable in outcome.

    Under the Final Margin Rule, where initial margin is required, a CSE must calculate the amount of initial margin each business day. The JFSA's margin rules allow a maximum of one month between initial margin calculations under some circumstances. However, the JFSA has explained that FIBOs/RFIs that are subject to the first phase of implementation of the JFSA's margin rules for non-cleared OTC Derivatives (i.e., those with the largest notional amounts of outstanding non-cleared OTC Derivatives) regularly trade non-cleared OTC Derivatives. Accordingly, because JFSA margin rules on calculation of initial margin require FIBOs/RFIs to recalculate initial margin whenever transactions are entered, expire, or are modified, and whenever fluctuations occur in markets or other factors affecting the amount of initial margin, such FIBOs/RFIs are likely to be required to recalculate initial margin each business day. Only FIBOs/RFIs subject to the later phase of implementation that do not regularly trade non-cleared OTC Derivatives would not be required to recalculate initial margin each business day.

    With respect to the timing of collecting/posting margin, the Final Margin Rule requires CSEs to collect/post any required margin amount (whether initial or variation) within one business day. The JFSA's margin rules specify only that margin be collected or posted “as soon as practicable,” which presumably could be longer than one business day. However, the JFSA has represented that, as a supervisory matter, it would expect FIBOs/RFIs that are subject to the first phase of implementation of the JFSA's margin rules for non-cleared OTC Derivatives (i.e., those with the largest notional amounts of outstanding non-cleared OTC Derivatives) to collect or post margin, as applicable, within one business day, with some flexibility for cross-border transactions. FIBOs/RFIs subject to the later phase of implementation would be expected to collect or post margin, as applicable, within two business days, again with some flexibility for cross-border transactions.

    In addition, the JFSA has represented that the timing of margin collection and posting will naturally shorten over a relatively brief period of time because the industry in Japan has committed to move toward T+1 settlement of financial instruments by 2018.

    Finally, the Commission understands that transactions in Japanese Government Bonds (“JGBs”) currently settle in 2 or 3 business days. The JFSA believes this will shorten to T+1 by 2018. However, the Commission is cognizant that if it does not find comparability on this element, JGB's may become ineligible for use as collateral whenever the Final Margin Rule is applicable and thus the market will lose a safe and highly liquid form of eligible collateral, perhaps increasing certain types of risk.

    Given the representations of the JFSA with respect to its expectations on compliance with its margin rules in practice, and the current settlement cycle for JGBs, the Commission finds that the requirements of the JFSA's rules with respect to the timing and manner for collection or payment of initial and variation margin are comparable.

    H. Margin Threshold Levels or Amounts

    The BCBS/IOSCO Framework provides that initial margin could be subject to a threshold not to exceed EUR 50 million. The threshold is applied at the level of the consolidated group to which the threshold is being extended and is based on all non-centrally cleared derivatives between the two consolidated groups.

    Similarly, to alleviate operational burdens associated with the transfer of small amounts of margin, the BCBS/IOSCO Framework provides that all margin transfers between parties may be subject to a de-minimis minimum transfer amount not to exceed EUR 500,000.

    1. Commission Requirement for Margin Threshold Levels or Amounts

    In keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts the Final Margin Rule generally provides that:

    • CSEs may agree with their counterparties that initial margin may be subject to a threshold of no more than $50 million applicable to a consolidated group of affiliated counterparties.111

    111See 17 CFR 23.154(a)(3) and definition of “initial margin threshold” in 17 CFR 23.151.

    • CSEs are not required to collect or to post initial or variation margin with a counterparty until the combined amount of initial margin and variation margin to be collected or posted is greater than $500,000 (i.e., a minimum transfer amount).112

    112See 17 CFR 23.152(b)(3).

    2. Japan Requirements for Margin Threshold Levels or Amounts

    Also in keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts, the JFSA's margin requirements generally provide that:

    • FIBOs/RFIs may agree with their counterparties that initial margin may be subject to a threshold of no more than JPY 7 billion applicable to a consolidated group of affiliated counterparties.113

    113 JFSA Public Notice No. 17, Article 3(2).

    • FIBOs/RFIs are not required to collect or to post initial or variation margin with a counterparty until the combined amount of initial margin and variation margin to be collected or posted is greater than JPY 70 million (i.e., a minimum transfer amount).114

    114See FIB Ordinance Article 123(1)(xxi)-5(b) and (xxi)-6(b).

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission has determined that the JFSA requirements for margin threshold levels or amounts, in the case of FIBOs/RFIs, are comparable to those required by the Final Margin Rule, in the case of CSEs.

    The Commission notes that at current exchange rates, JPY 7 billion is approximately $68 million, while JPY 70 million is approximately $680,000. Although these amounts are greater than those permitted by the Final Margin Rule, the Commission recognizes that exchange rates will fluctuate over time and thus the Commission finds that such requirements under the laws of Japan are comparable in outcome to those of the Final Margin Rule.

    I. Risk Management Controls for the Calculation of Initial and Variation Margin 1. Commission Requirement for Risk Management Controls for the Calculation of Initial and Variation Margin

    With respect to risk management controls for the calculation of initial margin, the Final Margin Rule generally provides that:

    • CSEs are required to have a risk management unit pursuant to § 23.600(c)(4). Such risk management unit must include a risk control unit tasked with validation of a CSEs initial margin model prior to implementation and on an ongoing basis, including an evaluation of the conceptual soundness of the initial margin model, an ongoing monitoring process that includes verification of processes and benchmarking by comparing the CSE's initial margin model outputs (estimation of initial margin) with relevant alternative internal and external data sources or estimation techniques, and an outcomes analysis process that includes back testing the model.115

    115See 17 CFR 23.154(b)(5).

    • In accordance with § 23.600(e)(2), CSEs must have an internal audit function independent of the business trading unit and the risk management unit that at least annually assesses the effectiveness of the controls supporting the initial margin model measurement systems, including the activities of the business trading units and risk control unit, compliance with policies and procedures, and calculation of the CSE's initial margin requirements under this part.116

    116See 17 CFR 23.154(b)(5)(iv).

    • At least annually, such internal audit function shall report its findings to the CSE's governing body, senior management, and chief compliance officer.117

    117See 17 CFR 23.154(b)(5)(iv).

    With respect to risk management controls for the calculation of variation margin, the Final Margin Rule generally provides that:

    • CSEs must maintain documentation setting forth the variation methodology with sufficient specificity to allow a counterparty, the Commission, a registered futures association, and any applicable prudential regulator to calculate a reasonable approximation of the margin requirement independently.

    • CSEs must evaluate the reliability of its data sources at least annually, and make adjustments, as appropriate.

    • CSEs, upon request of the Commission or a registered futures association, must provide further data or analysis concerning the variation methodology or a data source, including: The manner in which the methodology meets the requirements of the Final Margin Rule; a description of the mechanics of the methodology; the conceptual basis of the methodology; the empirical support for the methodology; and the empirical support for the assessment of the data sources.

    2. Japan Requirements for Risk Management Controls for the Calculation of Initial and Variation Margin

    With respect to risk management controls for the calculation of initial margin, the JFSA's margin requirements generally provide that:

    • Where FIBOs/RFIs use a quantitative calculation model to calculate initial margin, it must establish a model control unit, independent from units that execute non-cleared OTC derivatives, responsible for the design and operation of a system for managing such model.118

    118See JFSA Public Notice No. 15, Article 6(1)(i).

    • The model control unit must document policies, control, and procedures for an operation of the quantitative calculation model (including the criteria for assessment of the quantitative calculation model and measures to be taken in cases where the results of the assessment conflict with the criteria set in advance).119

    119See JFSA Public Notice No. 15, Article 6(1)(ii).

    • The model control unit shall document procedures and results of back testing against changes in the mark-to-market value of non-cleared OTC derivatives that occurred during a period equivalent to a holding period of not less than 10 business days.120

    120See JFSA Public Notice No. 15, Article 6(1)(iii).

    • The model control unit shall establish procedures for validating a quantitative calculation model and properly revising the quantitative calculation model at the time of the development thereof and periodically thereafter, as well as in the risk event where the accuracy of the quantitative calculation model is impaired due to a material modification to the quantitative calculation model or a structural change in the market.121

    121See JFSA Public Notice No. 15, Article 6(1)(iv).

    • The model control unit shall confirm that a quantitative calculation model can be properly operated with major counterparties by testing the quantitative calculation model in an appropriate simulated portfolio.122

    122See JFSA Public Notice No. 15, Article 6(1)(v).

    • An internal audit shall be conducted in principle at least once a year with regard to a calculation process of potential future exposure.123

    123See JFSA Public Notice No. 15, Article 6(1)(vi).

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission has determined that the JFSA requirements applicable to FIBOs/RFIs pertaining to risk management controls for the calculation of initial and variation margin are substantially the same as the corresponding requirements under the Final Margin Rule. Specifically, the Commission finds that under both the JFSA's requirements and the Final Margin Rule, a CSE is required to establish a unit independent of the trading desk that is tasked with comprehensively managing the entity's use of an initial margin model, including establishing controls and testing procedures. Accordingly, the Commission finds that the JFSA's requirements pertaining to risk management controls over the use of initial margin models are comparable in outcome to the controls required by the Final Margin Rule.

    J. Eligible Collateral for Initial and Variation Margin

    As explained in the BCBS/IOSCO Framework, to ensure that counterparties can liquidate assets held as initial and variation margin in a reasonable amount of time to generate proceeds that could sufficiently protect collecting entities from losses on non-centrally cleared derivatives in the event of a counterparty default, assets collected as collateral for initial and variation margin purposes should be highly liquid and should, after accounting for an appropriate haircut, be able to hold their value in a time of financial stress. Such a set of eligible collateral should take into account that assets which are liquid in normal market conditions may rapidly become illiquid in times of financial stress. In addition to having good liquidity, eligible collateral should not be exposed to excessive credit, market and FX risk (including through differences between the currency of the collateral asset and the currency of settlement). To the extent that the value of the collateral is exposed to these risks, appropriately risk-sensitive haircuts should be applied. More importantly, the value of the collateral should not exhibit a significant correlation with the creditworthiness of the counterparty or the value of the underlying non-centrally cleared derivatives portfolio in such a way that would undermine the effectiveness of the protection offered by the margin collected. Accordingly, securities issued by the counterparty or its related entities should not be accepted as collateral. Accepted collateral should also be reasonably diversified.

    1. Commission Requirement for Eligible Collateral for Initial and Variation Margin

    With respect to eligible collateral that may be collected or posted to satisfy an initial margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: 124

    124See 17 CFR 23.156(a)(1).

    • Cash denominated in a major currency, being United States Dollar (USD); Canadian Dollar (CAD); Euro (EUR); United Kingdom Pound (GBP); Japanese Yen (JPY); Swiss Franc (CHF); New Zealand Dollar (NZD); Australian Dollar (AUD); Swedish Kronor (SEK); Danish Kroner (DKK); Norwegian Krone (NOK); any other currency designated by the Commission; or any currency of settlement for a particular uncleared swap.

    • A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of Treasury.

    • A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, a U.S. government agency (other than the U.S. Department of Treasury) whose obligations are fully guaranteed by the full faith and credit of the U.S. government.

    • A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20 percent risk weight under the capital rules applicable to SDs subject to regulation by a prudential regulator.

    • A publicly traded debt security issued by, or an asset-backed security fully guaranteed as to the timely payment of principal and interest by, a U.S. Government-sponsored enterprise that is operating with capital support or another form of direct financial assistance received from the U.S. government that enables the repayments of the U.S. Government-sponsored enterprise's eligible securities.

    • A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the Bank for International Settlements, the International Monetary Fund, or a multilateral development bank as defined in § 23.151.

    • Other publicly-traded debt that has been deemed acceptable as initial margin by a prudential regulator as defined in § 23.151.

    • A publicly traded common equity security that is included in: The Standard & Poor's Composite 1500 Index or any other similar index of liquid and readily marketable equity securities as determined by the Commission, or an index that a CSE's supervisor in a foreign jurisdiction recognizes for purposes of including publicly traded common equity as initial margin under applicable regulatory policy, if held in that foreign jurisdiction.

    • Securities in the form of redeemable securities in a pooled investment fund representing the security-holder's proportional interest in the fund's net assets and that are issued and redeemed only on the basis of the market value of the fund's net assets prepared each business day after the security-holder makes its investment commitment or redemption request to the fund, if the fund's investments are limited to securities that are issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of the Treasury, and immediately-available cash funds denominated in U.S. dollars; or securities denominated in a common currency and issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20% risk weight under the capital rules applicable to SDs subject to regulation by a prudential regulator, and immediately-available cash funds denominated in the same currency; and assets of the fund may not be transferred through securities lending, securities borrowing, repurchase agreements, reverse repurchase agreements, or other means that involve the fund having rights to acquire the same or similar assets from the transferee.

    • Gold.

    • A CSE may not collect or post as initial margin any asset that is a security issued by: The CSE or a margin affiliate of the CSE (in the case of posting) or the counterparty or any margin affiliate of the counterparty (in the case of collection); a bank holding company, a savings and loan holding company, a U.S. intermediate holding company established or designated for purposes of compliance with 12 CFR 252.153, a foreign bank, a depository institution, a market intermediary, a company that would be any of the foregoing if it were organized under the laws of the United States or any State, or a margin affiliate of any of the foregoing institutions; or a nonbank financial institution supervised by the Board of Governors of the Federal Reserve System under Title I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5323).125

    125See 17 CFR 23.156(a)(2).

    • The value of any eligible collateral collected or posted to satisfy initial margin requirements must be reduced by the following haircuts: An 8% discount for initial margin collateral denominated in a currency that is not the currency of settlement for the uncleared swap, except for eligible types of collateral denominated in a single termination currency designated as payable to the non-posting counterparty as part of an eligible master netting agreement; and the discounts set forth in the following table: 126

    126See 17 CFR 23.156(a)(3).

    Standardized Haircut Schedule Cash in same currency as swap obligation 0.0 Eligible government and related debt (e.g., central bank, multilateral development bank, GSE securities identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity less than one-year 0.5 Eligible government and related debt (e.g., central bank, multilateral development bank, GSE securities identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity between one and five years 2.0 Eligible government and related debt (e.g., central bank, multilateral development bank, GSE securities identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity greater than five years 4.0 Eligible corporate debt (including eligible GSE debt securities not identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity less than one-year 1.0 Eligible corporate debt (including eligible GSE debt securities not identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity between one and five years 4.0 Eligible corporate debt (including eligible GSE debt securities not identified in 17 CFR 23.156(a)(1)(iv)): Residual maturity greater than five years 8.0 Equities included in S&P 500 or related index 15.0 Equities included in S&P 1500 Composite or related index but not S&P 500 or related index 25.0 Gold 15.0

    With respect to eligible collateral that may be collected or posted to satisfy a variation margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: 127

    127See 17 CFR 23.156(b)(1).

    • With respect to uncleared swaps with an SD or MSP, only immediately available cash funds that are denominated in: U.S. dollars, another major currency (as defined in § 23.151), or the currency of settlement of the uncleared swap.

    • With respect to any other uncleared swaps for which a CSE is required to collect or post variation margin, any asset that is eligible to be posted or collected as initial margin, as described above.

    • The value of any eligible collateral collected or posted to satisfy variation margin requirements must be reduced by the same haircuts applicable to initial margin described above.128

    128See 17 CFR 23.156(b)(2).

    Finally, CSEs must monitor the value and eligibility of collateral collected and posted: 129

    129See 17 CFR 23.156(c).

    • CSEs must monitor the market value and eligibility of all collateral collected and posted, and, to the extent that the market value of such collateral has declined, the CSE must promptly collect or post such additional eligible collateral as is necessary to maintain compliance with the margin requirements of §§ 23.150 through 23.161.

    • To the extent that collateral is no longer eligible, CSEs must promptly collect or post sufficient eligible replacement collateral to comply with the margin requirements of §§ 23.150 through 23.161.

    2. Japan Requirements for Eligible Collateral for Initial and Variation Margin

    With respect to eligible collateral that may be collected or posted to satisfy an initial or variation margin obligation, the JFSA's margin requirements generally provide that RFIs/FIBOS may collect or post: 130

    130See FIB Ordinance, Article 123(8) and JFSA Public Notice No. 16, Article 1(1).

    • Cash.

    • Debt that is issued by a central government, a central bank, or an international financial institution.131

    131 As listed in JFSA Public Notice No. 16, these are generally: Bank for International Settlements, International Monetary Fund, European Central Bank, European Community, International Development Banks (limited to International Bank for Reconstruction and Development, International Finance Corporation, Multilateral Investment Guarantee Agency, Asian Development Bank, African Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank, European Investment Bank, European Investment Fund, Nordic Investment Bank, Caribbean Development Bank, Islamic Development Bank, International Finance Facility for Immunisation and Council of Europe Development Bank), or a regional government, Japan Finance Organization for Municipalities or a government agency in Japan.

    • Debt that is issued by any other entity (excluding securitizations) with certain high level credit risk ratings, but excluding debt issued by a counterparty or any of its consolidated affiliates.

    • Equity securities of issuers included in the major equity index of certain designated countries, but excluding equity securities issued by a counterparty or any of its consolidated affiliates.

    • Investment trust securities (excluding securities of the counterparty or any of its consolidated affiliates) where the trust invests in any of the foregoing items and its mark-to-market is published each business day.

    The value of any eligible collateral collected or posted to satisfy initial margin requirements must be reduced by the following haircuts: 132

    132See FIB Ordinance, Article 123(8) and JFSA Public Notification No. 16 of March 31, 2016, Article 2.

    Cash 0%. Equities included in major stock indices 15%. Government and central bank debt; residual maturity of 1 year or less 0.5%, 1%, or 15%, depending on class of credit rating assigned by eligible credit rating firms.133 Government and central bank debt; residual maturity between 1 and 5 years 2%, 3%, or 15%, depending on class of credit rating assigned by eligible credit rating firms. Government and central bank debt; residual maturity of more than 5 years 4%, 6%, or 15% depending on class of credit rating assigned by eligible credit rating firms. Corporate bonds; residual maturity of 1 year or less 1% or 2% depending on class of credit rating assigned by eligible credit rating firms. Corporate bonds; residual maturity of between 1 and 5 years 4% or 6%, depending on class of credit rating assigned by eligible credit rating firms. Corporate bonds; residual maturity of more than 5 years 8% or 12%, depending on class of credit rating assigned by eligible credit rating firms. Investment trust securities The highest of the above ratios applicable to investments of the trust.

    In addition to the foregoing, under the JFSA's margin requirements, if the currency of a collateral asset posted for the purposes of initial margin is not the same as a currency specified in respect of the transactions, an additional 8% haircut must be applied.134

    133See Bank Capital Adequacy Notice (JFSA Notice No. 19 of 2006, as amended).

    134See FIB Ordinance, Article 123(9) and JFSA Public Notice No. 16, Article 2(2).

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission observes that the JFSA's requirements pertaining to assets eligible for posting or collecting by FIBOs/RFIs as collateral for uncleared OTC derivatives are similar to the requirements of the Final Margin Rule, but are more stringent in some respects and less stringent in others.

    Specifically, the JFSA's requirements are more stringent where they require a larger haircut than the Final Margin Rule on government, central bank, and corporate debt where an issuer's credit risk ratings are less than the highest levels provided by credit rating firms regulated by the JFSA. However, the JFSA's requirements are less stringent where they permit the same haircut for all equities (15%) included in major equity indices of certain designated countries 135 while the Final Margin Rule applies a 25% haircut for certain equities not included in the S&P 500. The JFSA's requirements are also less stringent with respect to the eligible collateral for variation margin for non-cleared OTC Derivatives between FIBOs/RFIs that are CSEs and FIBOs/RFIs that are SDs and MSPs (including other CSEs). The Final Margin Rule only permits immediately available cash funds that are denominated in U.S. dollars, another major currency (as defined in § 23.151), or the currency of settlement of the uncleared swap, while the JFSA's requirements would permit any form of eligible collateral (as described above).

    135See JFSA Public Notice No. 16, Article 1(1)(iv) and Article 2.

    In addition, the JFSA's margin rules allow eligible collateral in the form of securities issued by bank holding companies, savings and loan holding companies, certain intermediary holding companies, foreign banks, depository institutions, market intermediaries, and margin affiliates of the foregoing, all of which are prohibited by the Final Margin Rule.136

    136See 17 CFR 23.156(a)(2).

    Finally, the JFSA's margin rules also do not specifically address requirements to monitor the eligibility of posted collateral.137

    137See 17 CFR 23.156(c).

    While not identical, the Commission finds that the forms of eligible collateral for initial and variation margin under the laws of Japan provide comparable protections to the forms of eligible collateral mandated by the Final Margin Rule. Specifically, the Commission finds that the JFSA's margin regime ensures that assets collected as collateral for initial and variation margin purposes are highly liquid and able to hold their value in a time of financial stress. Because under JFSA's margin regime, a non-defaulting party would be able to liquidate assets held as initial and variation margin in a reasonable amount of time to generate proceeds that could sufficiently protect collecting entities from losses on uncleared swaps in the event of a counterparty default, the Commission finds the JFSA's margin regime with respect to the forms of eligible collateral for initial and variation margin for uncleared swaps is comparable to the Final Margin Rule.

    K. Requirements for Custodial Arrangements, Segregation, and Rehypothecation

    As explained in the BCBS/IOSCO Framework, the exchange of initial margin on a net basis may be insufficient to protect two market participants with large gross derivatives exposures to each other in the case of one firm's failure. Thus, the gross initial margin between such firms should be exchanged.138

    138See BCBS/IOSCO Framework, Key principle 5.

    Further, initial margin collected should be held in such a way as to ensure that (i) the margin collected is immediately available to the collecting party in the event of the counterparty's default, and (ii) the collected margin must be subject to arrangements that protect the posting party to the extent possible under applicable law in the event that the collecting party enters bankruptcy.139

    139See id.

    1. Commission Requirement for Custodial Arrangements, Segregation, and Rehypothecation

    In keeping with the principles set forth in the BCBS/IOSCO Framework, with respect to custodial arrangements, segregation, and rehypothecation, the Final Margin Rule generally requires that:

    • All assets posted by or collected by CSEs as initial margin must be held by one or more custodians that are not the CSE, the counterparty, or margin affiliates of the CSE or the counterparty.140

    140See 17 CFR 23.157(a) and (b).

    • CSEs must enter into an agreement with each custodian holding initial margin collateral that:

    Prohibits the custodian from rehypothecating, repledging, reusing, or otherwise transferring (through securities lending, securities borrowing, repurchase agreement, reverse repurchase agreement or other means) the collateral held by the custodian;

    May permit the custodian to hold cash collateral in a general deposit account with the custodian if the funds in the account are used to purchase an asset that qualifies as eligible collateral (other than equities, investment vehicle securities, or gold), such asset is held in compliance with this section, and such purchase takes place within a time period reasonably necessary to consummate such purchase after the cash collateral is posted as initial margin; and

    Is a legal, valid, binding, and enforceable agreement under the laws of all relevant jurisdictions including in the event of bankruptcy, insolvency, or a similar proceeding.141

    141See 17 CFR 23.157(c)(1) and (2).

    • A posting party may substitute any form of eligible collateral for posted collateral held as initial margin.142

    142See 17 CFR 23.157(c)(3).

    • A posting party may direct reinvestment of posted collateral held as initial margin in any form of eligible collateral.143

    143See id.

    • Collateral that is collected or posted as variation margin is not required to be held by a third party custodian and is not subject to restrictions on rehypothecation, repledging, or reuse.144

    144See Final Margin Rule, 81 FR at 672.

    2. Japan Requirements for Custodial Arrangements, Segregation, and Rehypothecation

    In keeping with the principles set forth in the BCBS/IOSCO Framework, with respect to custodial arrangements, segregation, and rehypothecation, the JFSA's margin rules generally require that:

    • All assets posted by or collected by FIBOs/RFIs as initial margin collateral must be held in a trust or other similar structure (e.g., a custodial arrangement) that constitutes legal segregation or its equivalent.145

    145See FIB Ordinance, Article 123(1)(xxi)-6(d).

    • The segregation structure must ensure that the collateral will be immediately available to the collecting party in the event of the posting party's default, and that the collateral will be immediately returned to the posting party in the event of the collecting party's bankruptcy.146

    146See id.

    • Rehypothecation, re-pledge, or re-use of collateral posted as initial margin is prohibited, provided that cash can be re-used where conducted by a safe method and managed in accordance with the initial margin management requirements of the FIB Ordinance, Article 123(1)(xxi)-6(d).147

    147See FIB Ordinance Article 123(1)(xxi)-6(e).

    • Collateral that is collected or posted as variation margin is not required to be held by a third party custodian and is not subject to restrictions on rehypothecation, repledging, or reuse.148

    148See FIB Ordinance Article 123(1)(xxi)-6(d).

    3. Commission Determination

    The Commission notes that the JFSA's margin requirements with respect to custodial arrangements are less stringent than those of the Final Margin Rule in one material respect. Under the Final Margin Rule, all assets posted by or collected by CSEs as initial margin must be held by one or more custodians that are not the CSE, the counterparty, or margin affiliates of the CSE or the counterparty.149 The JFSA's margin rules do not prohibit a FIBO/RFI from using an affiliated entity as custodian to hold initial margin collected from counterparties.

    149See 17 CFR 23.157(a) and (b).

    However, the JFSA has explained that because the JFSA's margin rules require initial margin to be held in a trust structure under the Trust Act of Japan,150 the risk of use of an affiliated entity as custodian may be mitigated. A trust account under the Trust Act of Japan is commonly utilized when segregation of assets is required because property deposited to such a trust account (“trust property”) is legally recognized as segregated from the property of the trustor, the property of the trust bank, and other trust property in the trust account. Thus trust property in such a trust account is bankruptcy remote from the trustor and the trust bank.151 Therefore, the JFSA represents that initial margin held in a trust account with an affiliate of a FIBO/RFI mitigates any risk that such initial margin would be found part of the FIBO/RFI's estate or its affiliated trust bank's estate in the event of the bankruptcy of either.

    150 Act No. 108 of 2006 (the “Trust Act of Japan”).

    151 See Trust Act of Japan, Article 23(1) stating:

    Except where based on a claim pertaining to an Obligation Covered by the Trust Property . . . compulsory execution, provisional seizure, provisional disposition or exercise of a security interest, or an auction . . ., or collection proceedings for delinquent national tax . . . is not allowed to be enforced against property that comes under Trust Property.

    Accordingly, despite the differences in required custodial arrangements, the Commission has determined that the JFSA's margin requirements applicable to FIBOs/RFIs pertaining to custodial arrangements, segregation, and rehypothecation are comparable to the corresponding requirements under the Final Margin Rule. Specifically, the Commission finds that under both the JFSA's requirements and the Final Margin Rule, a CSE/FIBO/RFI is required to segregate the initial margin posted by its counterparties with a third-party custodian under terms that constitute legal segregation, and such initial margin may not be rehypothecated. Accordingly, the Commission finds that the JFSA's requirements pertaining to custodial arrangements, segregation, and rehypothecation are comparable in outcome to those required by the Final Margin Rule.

    L. Requirements for Margin Documentation 1. Commission Requirement for Margin Documentation

    With respect to requirements for documentation of margin arrangements, the Final Margin Rule generally provides that:

    • CSEs must execute documentation with each counterparty that provides the CSE with the contractual right and obligation to exchange initial margin and variation margin in such amounts, in such form, and under such circumstances as are required by the Final Margin Rule.152

    152See 17 CFR 23.158(a).

    • The margin documentation must specify the methods, procedures, rules, inputs, and data sources to be used for determining the value of uncleared swaps for purposes of calculating variation margin; describe the methods, procedures, rules, inputs, and data sources to be used to calculate initial margin for uncleared swaps entered into between the CSE and the counterparty; and specify the procedures by which any disputes concerning the valuation of uncleared swaps, or the valuation of assets collected or posted as initial margin or variation margin may be resolved.153

    153See 17 CFR 23.158(b).

    2. Japan Requirements for Margin Documentation

    With respect to requirements for documentation of margin arrangements, the JFSA's margin rules generally provide that:

    • FIBOs/RFIs must establish an appropriate agreement with each OTC derivative counterparty (such as an ISDA Master Agreement and Credit Support Annex) documenting the calculation and transfer of initial and variation margin.154

    154See Supervisory Guidelines, Section IV-2-4(4)(i)(A) and (4)(ii)(A).

    • FIBOs/RFIs are required to have documentation with each uncleared OTC derivative counterparty that, among other things, identifies dispute resolution measures applicable to margin disputes for uncleared OTC derivatives.155

    155See Article 37-3 of the FIEA and Article 99 of the FIB Ordinance.

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission has determined that the JFSA's margin requirements applicable to FIBOs/RFIs pertaining to margin documentation are substantially the same as the margin documentation requirements under the Final Margin Rule. Specifically, the Commission finds that under both the JFSA's requirements and the Final Margin Rule, a CSE/FIBO/RFI is required to enter into documentation with each OTC derivative/swap counterparty that sets forth the method for calculating and transferring initial and variation margin, as well dispute resolution procedures. Accordingly, the Commission finds that the JFSA's requirements pertaining to margin documentation are comparable to those required by the Final Margin Rule.

    M. Cross-Border Application of the Margin Regime 1. Cross-Border Application of the Final Margin Rule

    The general cross-border application of the Final Margin Rule, as set forth in the Cross-Border Margin Rule, is discussed in detail in Section II above. However, § 23.160(d) and (e) of the Cross-Border Margin Rule also provide certain alternative requirements for uncleared swaps subject to the laws of a jurisdiction that does not reliably recognize close-out netting under a master netting agreement governing a swap trading relationship, or that has inherent limitations on the ability of a CSE to post initial margin in compliance with the custodial arrangement requirements 156 of the Final Margin Rule.157

    156See 17 CFR 23.157 and Section IV(K) above.

    157See 17 CFR 23.160(d) and (e).

    Section 23.160(d) generally provides that where a jurisdiction does not reliably recognize close-out netting, the CSE must treat the uncleared swaps covered by a master netting agreement on a gross basis with respect to collecting initial and variation margin, but may treat such swaps on a net basis with respect to posting initial and variation margin.158

    158See id.

    Section 23.160(e) generally provides that where certain CSEs are required to transact with certain counterparties in uncleared swaps through an establishment in a jurisdiction where, due to inherent limitations in legal or operational infrastructure, it is impracticable to require posted initial margin to be held by an independent custodian pursuant to § 23.157, the CSE is required to collect initial margin in cash (as described in § 23.156(a)(1)(i)) and post and collect variation margin in cash, but is not required to post initial margin. In addition, the CSE is not required to hold the initial margin collected with an unaffiliated custodian.159 Finally, the CSE may only enter into such affected transactions up to 5% of its total uncleared swap notional outstanding for each broad category of swaps described in § 23.154(b)(2)(v).

    159See 17 CFR 23.160(e) and 23.157(b).

    2. Cross-Border Application of JFSA's Margin Regime

    With respect to cross-border transactions, JFSA's margin requirements generally provide that, where the JFSA's margin regime would apply to a transaction that also would require compliance with the margin regime of a foreign state, the Commissioner of the JFSA may exempt such transactions from compliance with the JFSA's margin rules if the Commissioner finds that such exemption is unlikely to be contrary to the public interest or hinder protection of investors due to a FIBO/RFI's compliance with the margin regime of the foreign state that is recognized by the JFSA to be equivalent to the JFSA's margin regime.160

    160See FIB Ordinance, Article 123(10)(v) and (11)(v).

    With respect to non-cleared OTC Derivatives subject to the laws of a jurisdiction that does not reliably recognize close-out netting under a master netting agreement, the JFSA's margin regime generally provides that an FIBO/RFI is exempt from the requirements to post or collect either initial or variation margin.161 However, as represented by the JFSA, the JFSA's margin regime also requires that, with respect to such transactions, the FIBO/RFI must establish an appropriate risk management framework for the risks of such transactions that may include collecting margin on a gross basis.162

    161See FIB Ordinance, Article 123(10)(i) and (11)(i).

    162See Supervisory Guideline, IV-2-4(4)(iii)(C).

    With respect to non-cleared OTC Derivatives subject to the laws of a jurisdiction that has inherent limitations on the ability of a FIBO/RFI to post initial margin in compliance with the custodial arrangement requirements under the JFSA's margin rules, as represented by the JFSA, the JFSA's margin rules provide that the FIBO/RFI is exempt only from the requirement to post initial margin, but must still comply with the requirement to collect initial margin and post/collect variation margin.163

    163See FIB Ordinance 123(1)(xxi)-6(d), (e), and (f).

    3. Commission Determination

    Based on the foregoing and the representations of the applicant, the Commission finds that the JFSA's margin regime with respect to its cross-border application is comparable in outcome to that of the Final Margin Rule as set forth in the Cross-Border Margin Rule.

    First, the Commission recognizes that the JFSA's margin regime permits substituted compliance to substantially the same extent as the Cross-Border Margin Rule. For example, a CSE subject to the JFSA's margin regime entering into a transaction with a counterparty in the U.S., and thus subject to the Final Margin Rule, could request the Commissioner of the JFSA to exempt such transaction from compliance with the JFSA's margin regime upon a finding that the Final Margin Rule is equivalent to the JFSA's margin regime. Thus, where a CSE finds itself subject to both the Final Margin Rule and JFSA's margin regime, but not in a situation where substituted compliance is available under the Cross-Border Margin Regime, it could apply to the JFSA for a finding of equivalence.

    Second, with respect to transactions subject to the laws of a non-netting jurisdiction, although the JFSA's margin regime exempts FIBOs/RFIs from the otherwise applicable requirements to collect and post margin, the JFSA's Supervisory Guidelines still require such entities to establish an appropriate risk management framework to protect against the risks of such transactions. The Commission notes that a CSE is also required to have a risk management program pursuant § 23.600, and thus the Commission has the authority to inquire as to the adequacy of the risk management covering uncleared swaps in non-netting jurisdictions.

    Finally, with respect to non-cleared OTC Derivatives subject to the laws of a jurisdiction that has inherent limitations on the ability of a CSE/FIBO/RFI to post initial margin in compliance with the custodial arrangement requirements of the JFSA's margin rules and the Final Margin Rule, the Cross-Border Margin Rule would only require the CSE to collect (but not post) initial margin in cash (but not hold such initial margin with an unaffiliated custodian) 164 and to post and collect variation margin in cash. The Cross-Border Margin Rule would also limit the CSE's ability to enter into such transactions to 5% of its total uncleared swap notional outstanding for each broad category of swap asset classes. Meanwhile, the JFSA's margin rules also exempt a FIBO/RFI from the requirement to post initial margin, while still requiring compliance with the requirement to collect initial margin and post/collect variation margin.165 The JFSA margin rule does not have the cash-only requirement, nor does it limit transactions to 5% of a FIBO/RFI's total notional of uncleared swaps.

    164See 17 CFR 23.160(e) and 23.157(b).

    165See FIB Ordinance 123(1)(xxi)-6(d), (e), and (f).

    Having considered the similarities and differences described above, the Commission finds that: (1) The availability of reciprocity of substituted compliance available from the JFSA makes the JFSA margin regime comparable in this respect to that of the Final Margin Rule and the Cross-Border Margin Rule; (2) the representations of the JFSA regarding the extensive risk management requirements applicable to transactions in non-netting jurisdictions makes the JFSA margin regime comparable in this respect to that of the Final Margin Rule and the Cross-Border Margin Rule; and (3) the generally similar requirements for collection of initial margin and collection/posting of variation margin for transactions in jurisdictions where compliance with custodial arrangements is impracticable makes the JFSA margin regime comparable in this respect to that of the Final Margin Rule and the Cross-Border Margin Rule. Accordingly, the Commission finds the cross-border aspects of the JFSA's margin regime comparable to that of the Commission.

    N. Supervision and Enforcement

    The Commission has a long history of regulatory cooperation with the JFSA, including cooperation in the regulation of registrants of the Commission that are also FIBOs. Thus, the Commission finds that the JFSA has the necessary powers to supervise, investigate, and discipline entities for compliance with its margin requirements and recognizes the JFSA's ongoing efforts to detect and deter violations of, and ensure compliance with, the margin requirements applicable in Japan.

    V. Conclusion

    As detailed above, the Commission has considered the scope and objectives of the margin requirements for uncleared swaps under the laws of Japan,166 whether such margin requirements achieve comparable outcomes to the Commission's corresponding margin requirements; 167 and the ability of the JFSA to supervise and enforce compliance with the margin requirements for non-cleared OTC Derivatives under the laws of Japan.168

    166See 17 CFR 23.160(c)(3)(i).

    167See 17 CFR 23.160(c)(3)(ii). As discussed above, the Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; therefore, the Commission expects that the relevant foreign margin requirements would conform to such Framework at minimum in order to be deemed comparable to the Commission's corresponding margin requirements.

    168See 17 CFR 23.160(c)(3)(iii). See also 17 CFR 23.160(c)(3)(iv) (indicating the Commission would also consider any other relevant facts and circumstances).

    Pursuant to the foregoing process, the Commission has noted several differences in the margin regimes. However, the only difference for which the Commission has found the JFSA's margin regime to be not comparable is that the Final Margin Rule requires collection and posting of variation margin, and in a limited circumstance, collection of initial margin, for uncleared swaps between consolidated affiliates, while the JFSA's margin rules do not require any margin to be posted or collected on such transactions.169

    169See Section IV(D) supra.

    Accordingly, a CSE that is subject to both the Final Margin Rule and the JFSA's margin rules with respect to an uncleared swap that is also a non-cleared OTC Derivative may rely on substituted compliance for all aspects of the Final Margin Rule and the Cross-Border Margin Rule except that such CSE must comply with the inter-affiliate margin requirements of § 23.159 of the Final Margin Rule.

    Issued in Washington, DC, on September 8, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Appendices to Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants—Commission Voting Summary, Chairman's Statement, and Commissioners' Statements Appendix 1—Commission Voting Summary

    On this matter, Chairman Massad and Commissioner Giancarlo voted in the affirmative. Commissioner Bowen voted in the negative.

    Appendix 2—Statement of Chairman Timothy G. Massad

    Today, the CFTC has furthered its commitment to international cooperation and harmonization.

    By issuing this comparability determination with respect to Japan's rules on margin for uncleared swaps, the Commission has ensured that a Japanese swap dealer or major swap participant registered with the CFTC can comply with many aspects of our margin rules by meeting the corresponding Japan Financial Services Agency (JFSA) requirements. This is an important and necessary step toward building a strong international regulatory framework for the over-the-counter swaps market, which is critical to ensuring the safety and soundness of our own financial markets.

    It's important to remember that we are still at the early stages of developing this new global framework. Shortly after I took office two years ago, there were significant differences between our rules, Japan's rules, and the rules of other jurisdictions. We made tremendous progress bringing those rules together since that time. And today, we all share the same goal of a strong, international framework. But there are still going to be differences, and we understand our laws and the laws of other jurisdictions will never be identical.

    Our comparability determination reflects this understanding. In this instance, as in other decisions, the Commission compared our margin rule with each element of Japan's rules, carefully considering the objectives and outcomes of its specific provisions.

    We concluded that while there are differences in our margin regimes, Japan's margin requirements achieve comparable outcomes. The Commission identified only one area where we must make an exception to that conclusion. Our margin rule requires the collection and posting of variation margin and, in certain circumstances, the collection of initial margin for uncleared swaps between consolidated affiliates. However, the JFSA's margin rules do not require any margin to be posted or collected on such transactions.

    As a result, the Commission has determined that certain entities subject to both the CFTC's and the JFSA's margin rules with respect to an uncleared swap may rely on the substituted compliance made available under the CFTC's Cross-Border Margin Rule—with the exception that these entities must comply with the CFTC's inter-affiliate margin requirements. I believe this exception is necessary, to help address the risk that can flow back into the United States from offshore activity, even when the subsidiary is not explicitly guaranteed by the U.S. parent. In addition, it will prevent the potential buildup of current exposure among affiliates.

    Let me also comment on the concerns regarding differences in our rules with respect to the treatment of collateral, custodial requirements, and swaps with counterparties in so-called “non-netting” jurisdictions. I believe we should allow reliance on Japanese rules in these areas. That is because our goal is comparability in outcomes, and that goal is achieved in both cases.

    First, on the treatment of collateral, it has been noted that there is a difference in our rules on haircuts for equities. But it is relatively small. We require a haircut of 15 percent on equities included in the S&P 500, and 25 percent on the S&P 1500. Japan's rules say 15 percent on major equity indices. But we should also note that Japan imposes a larger discount than we do on government bonds and corporate debt. Our comparability process should therefore not insist on line-by-line identity, but rather decide what differences are truly significant to overall outcomes.

    Similarly, with respect to custodial requirements, I recognize the importance of the protection of margin deposits, especially in the event of the bankruptcy of a counterparty. The means that we require in our rule—segregation with an independent custodian—are not commonly used in Japan. But the Japan rules require the use of trust structures which achieve the same goal under Japanese law, and are recognized under Japanese law in bankruptcy.

    With respect to treatment of non-netting jurisdictions, our rule requires a swap dealer to collect initial margin on a gross basis from a counterparty in a jurisdiction that doesn't clearly recognize netting, while the JFSA rule says that the dealer must establish an appropriate risk management framework that may, but is not required to, include collection of margin. To measure outcomes, we must look not only at the specifics but at how the rules work in different scenarios. For example, Japanese swap dealers whose trades are guaranteed by a U.S. person must follow our rules on this issue and collect margin, regardless of what we decide as a matter of substituted compliance. And Japanese swap dealers whose trades are not guaranteed by a U.S. person, and who are not foreign consolidated subsidiaries, would not be required to follow our rule on this issue, regardless of what we decide as a matter of substituted compliance. That is because such trades are excluded from our rules. Japanese swap dealers who are foreign consolidated subsidiaries (and whose trades are not guaranteed by a U.S. person) would be entitled to substituted compliance, but if they engage in trades with counterparties in non-netting jurisdictions they would still be subject to the JFSA risk management requirements, and any parent entity swap dealer would be subject to our consolidated risk management requirements.

    For these reasons, I believe it is appropriate to grant substituted compliance without an exception on these issues.

    In making these determinations, staff also considers another jurisdiction's supervisory and enforcement authority in assessing outcomes. And here, I agree with staff's conclusion, and want to underscore the fact that we have a very strong and good relationship with the JFSA. In fact, I met with Commissioner Mori and members of his staff just a few months ago. There is mutual respect, and good communication and cooperation between our agencies. We have worked well together on a number of issues, including the formulation of margin requirements. And this determination will strengthen that relationship further.

    Today's decision will contribute significantly to that international framework and help make sure our derivatives markets continue to be dynamic, competitive, and drivers of economic growth. I want to particularly thank our staff in the Division of Swap Dealer and Intermediary Oversight and in the Office of the General Counsel for their work on this and the implementation of our margin rules generally. I also thank Commissioners Bowen and Giancarlo for their input and consideration of this determination.

    Appendix 3—Dissenting Statement of Commissioner Sharon Y. Bowen

    I thank the staff for all of its hard work on this margin comparability determination. However, I cannot support it. I will be voting no as I think it would introduce greater risk into the derivatives markets—the very thing that we were sent here by the American people to prevent.

    There are just three questions I will answer in my remarks today:

    1. What is a margin comparability determination and why does it matter?

    2. What are the problems with this particular comparability determination?

    3. How can we fix it?

    First, what is a margin comparability determination and why does it matter?

    For many Americans, a margin comparability determination is truly a foreign concept. But it actually has great significance to our economy. Margin is collateral. The 2008 derivatives market was under-collateralized, and that is what caused it to explode and take our economy with it. The American people expected us, as regulators, to fix that by requiring sufficient collateral to address the risk. We have done that with our margin rule.1

    1 Though, as noted in my dissent, this rule was far weaker than it should have been due to how it dealt with inter-affiliate margin. See Dissenting Statement of Commissioner Sharon Y. Bowen Regarding Final Rule on Margin for Uncleared Swaps (Dec. 16, 2015), available at http://www.cftc.gov/PressRoom/SpeechesTestimony/bowenstatement121615a.

    In a margin comparability determination, we are defining when our U.S. dealers that are operating in the other jurisdiction, can ignore our margin rule and follow the other jurisdiction's margin rule. Allowing American companies to just follow one set of rules—that of the jurisdiction they are in—makes sense when the rules are basically accomplishing the same thing. I am in favor of that. International comity, harmonization across jurisdictions, and having an outcomes-based approach to comparability all make sense.

    Unfortunately, that is not the scenario that we have here. While Japanese law has some strong similarities to our own, there are some areas of divergence that are significant and would allow American companies to do overseas what they would never be allowed to do here. And make no mistake; though these companies are physically located in Japan, their cash line runs right back to the United States. That risk could be borne again by American households. A comparability determination should not be the back door way of undoing or weakening our regulations and thereby incentivizing our companies to send their risky business to their affiliates located in Japan. That would not be good for our economy, Japan's economy, or global financial stability overall.

    This determination is doubly important because this is the first one and thus sets the stage for others. By adopting a weak standard today, we pave the way for even weaker determinations in the future. Moreover, we are not establishing this determination in conjunction with the Prudential Regulators, who oversee roughly half of U.S. swap dealers and are our counterparts on these issues. We have worked effectively with our Prudential counterparts on the international Working Group on Margin Requirements (WGMR) 2 thus far; making this determination without harmonization amongst U.S. regulators is ill-advised. Differences in requirements would only open the door to regulatory arbitrage domestically.

    2 Working Group on Margin Requirements of the Basel Committee on Banking Supervision and the International Organization of Securities Commissions.

    Second, what is the problem with this particular comparability determination?

    The answer: Bankruptcy. Bankruptcy is something that we do not like to think about, but in finance, it is something that we must always consider when designing deals. We know the old adage: Hope for the best, but plan for the worst. In my work as a law firm partner and Acting Chair of the Securities Investor Protection Corporation (SIPC), I have seen too many bankruptcies. And there are three key differences in our margin rule and the Japanese margin rule that would leave our American companies operating under Japanese law vulnerable. The key differences are:

    1. Where the customer money is kept. Our rules require customer collateral to be held by a third party—not by either one of the counterparties. This is a safeguard for bankruptcy. If the money is held by one of the counterparties, then a bankruptcy court may use that money to meet the counterparty's debts. Or in a stress event, the counterparty could potentially take the customer money to meet its obligation. If, however, the money is at a third party, it is far more likely that it will get back to the customers that provided it. Japanese law does not have a comparable rule. Thus, in a bankruptcy situation, U.S. customers may be unable to receive back their customer funds. This discrepancy is noted in the determination,3 but the staff states that the fact that the funds are segregated sufficiently mitigates against the risk. I disagree. In my experience with bankruptcies, I have learned that access to customer funds largely depends on the location of those funds. Third-party custodianship is an important safeguard.

    3See “Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants,” pp. 63-65. (“The Commission notes that the JFSA's [Japan Financial Services Agency] margin requirements with respect to custodial arrangements are less stringent than those of the Final Margin Rule in one material respect. Under the Final Margin Rule, all assets posted by or collected by CSEs as initial margin must be held by one or more custodians that are not the CSE, the counterparty, or margin affiliates of the CSE or the counterparty. The JFSA's margin rules do not prohibit a FIBO/RFI from using an affiliated entity as custodian to hold initial margin collected from counterparties.”).

    2. Transacting with counterparties in bankruptcy-risky jurisdictions. There are certain developing countries where there is little certainty that collateral will be there if there is a bankruptcy (non-netting jurisdictions), and/or where they do not adequately protect customer funds from that of the dealer (“non-segregation jurisdictions”). Under our rules, our U.S. dealers have to limit the way they trade with counterparties in these bankruptcy-vulnerable jurisdictions because we are not confident that our American investors will get their money back in a bankruptcy scenario.4 These safeguards vary depending on the circumstances and include limiting the amount of business that our dealers can do with these counterparties, and limiting the type of acceptable collateral. Japan does not have these kinds of limits on their dealers who deal in these bankruptcy-vulnerable jurisdictions. Thus, the American companies operating in Japan could potentially have an unlimited number of deals with counterparties in these developing countries. This could put some of our major American financial firms, and thus our economy, at risk.

    4Id. at pp. 69-70. (“[W]ith respect to transactions subject to the laws of a non-netting jurisdiction JFSA's margin regime exempts FIBOs/RFIs from the otherwise applicable requirements to collect and post margin. . . . [W]ith respect to non-cleared OTC Derivatives subject to the laws of a jurisdiction that has inherent limitations on the ability of a CSE/FIBO/RFI to post initial margin in compliance with the custodial arrangement requirements of the JFSA's margin rules and the Final Margin Rule . . . [t]he JFSA margin rule does not have the cash-only requirement, nor does it limit transactions to 5% of a FIBO/RFI's total notional of uncleared swaps.”).

    3. Types of collateral allowed. There are significant differences in the treatment of collateral between our margin rule and the Japanese rule. First, while our rules limit daily variation margin to cash for dealer-to-dealer swaps, under Japanese law, variation margin could be in a number of much less liquid instruments. And second, while we require a 25% haircut for certain equities not included in the S&P 500, under Japanese law, equities included in major equity indices of certain designated countries just have a 15% blanket haircut.5 That means that we require our companies to value equities much more conservatively than under Japanese law. That means that in a crisis, American companies in Japan could be exchanging instruments that are virtually worthless since they cannot be readily converted to cash, thereby putting them in jeopardy.

    5Id. at pp. 58-59. (“[T]he JFSA's requirements are less stringent where they permit the same haircut for all equities (15%) included in major equity indices of certain designated countries while the Final Margin Rule applies a 25% haircut for certain equities not included in the S&P 500. The JFSA's requirements are also less stringent with respect to the eligible collateral for variation margin for non-cleared OTC Derivatives between FIBOs/RFIs that are CSEs and FIBOs/RFIs that are SDs and MSPs (including other CSEs). The Final Margin Rule only permits immediately available cash funds that are denominated in U.S. dollars, another major currency (as defined in § 23.151), or the currency of settlement of the uncleared swap, while the JFSA's requirements would permit any form of eligible collateral (as described above). In addition, the JFSA's margin rules allow eligible collateral in the form of securities issued by bank holding companies, savings and loan holding companies, certain intermediary holding companies, foreign banks, depository institutions, market intermediaries, and margin affiliates of the foregoing, all of which are prohibited by the Final Margin Rule. Finally, the JFSA's margin rules also do not specifically address requirements to monitor the eligibility of posted collateral.”).

    If these were insignificant differences, I would happily brush them aside and accept this comparability determination as is. But these issues could mean the difference between an orderly bankruptcy, and a disaster overseas that pulls down a significant American financial company, and potentially our economy.

    And last, how could we have fixed it?

    Fixing this is actually rather simple. We could provide a partial comparability determination—our American businesses could follow the Japanese margin rule except in the areas above where they would have to follow our rule. We have already done this in the current draft in the area of inter-affiliate margin. We would simply extend the same treatment to these three areas as well.

    Unfortunately, that common sense approach was not followed here. And that is why I am unable to vote for it. While our two jurisdictions are partly comparable, there are significant areas in which there are material divergences. A partial comparability determination, as described above, would be the best way to strike the balance between international harmonization and protection of American financial companies that are located elsewhere but still directly linked to our economy.

    Appendix 4—Statement of Commissioner J. Christopher Giancarlo

    When the Commission issued its rule addressing the cross-border application of margin requirements for uncleared swaps in May of this year 1 I expressed my disagreement with the approach the Commission established as overly complex and unduly narrow.2 I also expressed my concern that the Commission's “element-by-element” methodology for determining when substituted compliance with a foreign regulator's margin regime would be permitted is contrary to the principles-based, holistic analysis the Commission has used in the past in certain circumstances 3 and could result in an impracticable patchwork of U.S. and foreign regulations for cross-border transactions.4

    1See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants—Cross-Border Application of the Margin Requirements, 81 FR 34818, May 31, 2016.

    2Id. at 34853-54.

    3 As I noted in my dissent, the Commission employs a principles-based, holistic approach for substituted compliance determinations under Commission Regulation 30.10 and for purposes of permitting direct access by U.S. customers to foreign boards of trade. Id. at 34853 n.5.

    4Id. at 34853-54.

    My concerns were realized last week when Asian swaps markets ground to a halt amidst confusion about the application of new margin rules to major market participants. Once again, there were reports of counterparties avoiding trading with U.S. persons. I believe this rule's subjectivity and complexity will continue to be a source of regulatory uncertainty at the expense of U.S. financial firms, their employees and the American businesses they serve.

    I nevertheless support the comparability determination for Japan. In this instance, the Commission has appropriately recognized that certain differences between the U.S. margin regime and Japan's margin regime achieve comparable outcomes. Wrong approach; right outcome. I therefore vote in favor of the determination.

    [FR Doc. 2016-22045 Filed 9-14-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1986 [Docket Number: OSHA-2011-0841] RIN 1218-AC58 Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Seaman's Protection Act, as Amended AGENCY:

    Occupational Safety and Health Administration, Labor.

    ACTION:

    Final rule.

    SUMMARY:

    This document provides the final text of regulations governing the employee protection (whistleblower) provisions of the Seaman's Protection Act (SPA or the Act), as amended by section 611 of the Coast Guard Authorization Act of 2010. On February 6, 2013, the Occupational Safety and Health Administration (OSHA or the Agency) published an interim final rule (IFR) for SPA whistleblower complaints in the Federal Register, requested public comment on the IFR, and the Agency has considered the comments. This final rule finalizes the procedures and time frames for the handling of retaliation complaints under SPA, including procedures and time frames for employee complaints to OSHA, investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) on behalf of the Secretary of Labor (Secretary), and judicial review of the Secretary's final decision. In addition, this final rule provides the Secretary's interpretation of the term “seaman” and addresses other interpretive issues raised by SPA.

    DATES:

    This final rule is effective on September 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rob Swick, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email [email protected] This is not a toll-free number. This Federal Register publication is available in alternative formats: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape.

    SUPPLEMENTARY INFORMATION: I. Background

    Congress enacted SPA as section 13 of the Coast Guard Authorization Act of 1984, Public Law 98-557, 98 Stat. 2860 (1984). SPA protected seamen from retaliation for reporting a violation of Subtitle II of Title 46 of the U.S. Code, which governs vessels and seamen, or a regulation promulgated under that subtitle. S. Rep. No. 98-454, at 11 (1984). Congress passed SPA in response to Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983), in which the Fifth Circuit held that the whistleblower provision of the Occupational Safety and Health Act (OSH Act) did not cover a seaman who had been demoted and discharged from his position because he reported a possible safety violation to the U.S. Coast Guard. S. Rep. No. 98-454, at 12 (1984). This original version of SPA prohibited “[a]n owner, charterer, managing operator, agent, master, or individual in charge of a vessel” from retaliating against a seaman “because the seaman in good faith has reported or is about to report to the Coast Guard that the seaman believes that” a violation of Subtitle II had occurred. Public Law 98-557, sec. 13(a), 98 Stat. at 2863. It permitted seamen to bring actions in U.S. district courts seeking relief for alleged retaliation in violation of the Act. Id. sec. 13(a), 98 Stat. at 2863-64.

    In 2002, Congress amended SPA. Section 428 of the Maritime Transportation Security Act of 2002, Public Law 107-295, 116 Stat. at 2064 (2002), altered both the protections afforded and remedies permitted by the Act. First, Congress removed the specific list of actors who were prohibited from retaliating against seamen and replaced that text with “[a] person.” Public Law 107-295, sec. 428(a), 116 Stat. at 2127. Second, Congress expanded the existing description of protected activity to include reports to “the Coast Guard or other appropriate Federal agency or department,” rather than only to the Coast Guard, and violations “of a maritime safety law or regulation prescribed under that law or regulation,” rather than only of Subtitle II and its accompanying regulations. Id. Third, Congress added a second type of protected activity; a seaman who “refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public” was granted protection from retaliation for such a refusal. Id. The new text clarified that, “[t]o qualify for protection against the seaman's employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.” Id. The amended statute further explained that “[T]he circumstances causing a seaman's apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer.” Public Law 107-295, sec. 428, 116 Stat. at 2127.

    Congress made additional changes to the Act, including those that led OSHA to initiate this rulemaking, on October 15, 2010. Section 611 of the Coast Guard Authorization Act of 2010, Public Law 111-281, 124 Stat. at 2905 (2010), made further additions to the list of protected activities under SPA and fundamentally changed the remedies section of the Act. Section 611 added to subsection (a) the following protected activities: The seaman testified in a proceeding brought to enforce a maritime safety law or regulation; the seaman notified, or attempted to notify, the vessel owner or the Secretary [of the department in which the Coast Guard is operating 1 ] of a work-related personal injury or work-related illness of a seaman; the seaman cooperated with a safety investigation by the Secretary [of the department in which the Coast Guard is operating] or the National Transportation Safety Board; the seaman furnished information to the Secretary [of the department in which the Coast Guard is operating], the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; and the seaman accurately reported hours of duty under this part.

    1 The text of 46 U.S.C. 2114 refers to “the Secretary,” defined for purposes of Part A of Subtitle II as “the Secretary of the department in which the Coast Guard is operating.” 46 U.S.C. 2101(34). The Coast Guard is currently part of the Department of Homeland Security.

    Congress replaced section (b) of SPA, which had provided a private right of action to seamen and described relief a court could award, in its entirety. The new text provides that a seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman's request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection (b) of section 31105 of title 49. Such complaint is subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section.

    Id. Section 31105 of title 49 is the whistleblower protection provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105. STAA provides that initial complaints regarding retaliation under that statute are to be filed with and handled by the Secretary of Labor (Secretary), sec. 31105(b)-(e), and the Secretary has delegated his authority in this regard to OSHA. Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has also delegated to OSHA his authority under SPA. Id. at 3913. Hearings on objections to findings by the Assistant Secretary for OSHA (Assistant Secretary) are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the Department of Labor's Administrative Review Board (ARB). Secretary's Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010).

    OSHA is promulgating this final rule to finalize procedures for the handling of whistleblower protection complaints under SPA and address certain interpretative issues raised by the statute. To the extent possible within the bounds of applicable statutory language, these regulations are designed to be consistent with the procedures applied to claims under STAA, and the other whistleblower protection statutes administered by OSHA, including the Energy Reorganization Act (ERA), 42 U.S.C. 5851; the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121; Title VIII of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. 1514A; and the Consumer Product Safety Improvement Act, 15 U.S.C. 2087.

    II. Summary of Statutory Procedures

    As explained above, SPA adopts the process for filing a complaint established under subsection (b) of STAA. 46 U.S.C. 2114(b). It further incorporates the other “procedures, requirements, and rights described in” STAA, id., described below. OSHA therefore understands SPA to incorporate STAA subsections (b) through (g). SPA's text could cause confusion regarding which sections of STAA it adopts by referring, in some cases incorrectly,2 to certain sections while not mentioning others.3 The text refers to those sections following the word “including,” however, with no suggestion that the subsequent list is meant to be exclusive. Accordingly, OSHA will not treat it as such, and, as explained below, promulgates regulations to implement the procedures described in 49 U.S.C. 31105(b)-(g). OSHA does not read SPA as incorporating 49 U.S.C. 31105 (a), (h), (i) and (j) because those provisions are substantive and specific to STAA or agencies other than the Department of Labor rather than describing “procedures, requirements, and rights.” The statutory procedures applicable to SPA claims are summarized below.

    2 Specifically, the Act's adoption of STAA's “procedures, requirements, and rights” is followed by the text “including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of [STAA], and the requirement to bring a civil action under subsection (d) of that section.” 46 U.S.C. 2114(b). But section (c) addresses de novo review in the district court if the Secretary has not issued a final decision after 210 days; section (d) addresses filing a petition for review after receiving an adverse order following a hearing; and section (e) provides that “[i]f a person fails to comply with an order issued under subsection (b) of this section, the Secretary of Labor shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.” 49 U.S.C. 31105(c)-(e).

    3 Section (f) declares that STAA does not preempt any other federal or state law safeguarding against retaliation; section (g) declares that STAA does not diminish any legal rights of any employee, nor may the rights of the section be waived; section (h) prohibits the disclosure by the Secretary of Transportation or the Secretary of Homeland Security of the identity of an employee who provides information about an alleged violation of the statute except, under certain circumstances, to the Attorney General; section (i) creates a process for reporting security problems to the Department of Homeland Security; and section (j) defines the term “employee” for purposes of STAA. 49 U.S.C. 31105(f)-(j).

    Filing of SPA Complaints

    A seaman, or another person at the seaman's request, alleging a violation of SPA, may file a complaint with the Secretary not later than 180 days after the alleged retaliation.

    Legal Burdens of Proof for SPA Complaints

    STAA states that STAA whistleblower complaints will be governed by the legal burdens of proof set forth in AIR21, 49 U.S.C. 42121(b), which contains whistleblower protections for employees in the aviation industry. 49 U.S.C. 31105(b)(1). Accordingly, these burdens of proof also govern SPA whistleblower complaints.

    Under AIR21, a violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. 49 U.S.C. 42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity. 49 U.S.C. 42121(b)(2)(B)(iv); Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under AIR21); Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389 (7th Cir. 2010) (explaining that because it incorporates the burdens of proof set forth in AIR21, STAA requires only a showing that the protected activity was a contributing factor, not a but-for cause, of the adverse action.).

    Written Notice of Complaint and Findings

    Under 49 U.S.C. 31105(b), upon receipt of the complaint, the Secretary must provide written notice of the filing of the complaint to the person or persons alleged in the complaint to have violated the Act (respondent). 49 U.S.C. 31105(b).

    Within 60 days of receipt of the complaint, the Secretary must conduct an investigation of the allegations, decide whether it is reasonable to believe the complaint has merit, and provide written notification to the complainant and the respondent of the investigative findings.

    Remedies

    If the Secretary decides it is reasonable to believe a violation occurred, the Secretary shall include with the findings a preliminary order for the relief provided for under 49 U.S.C. 31105(b)(3). This order shall require the respondent to take affirmative action to abate the violation; reinstate the complainant to the former position with the same pay and terms and privileges of employment; and pay compensatory damages, including back pay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. Additionally, if the Secretary issues a preliminary order and the complainant so requests, the Secretary may assess against the respondent the costs, including attorney fees, reasonably incurred by the complainant in bringing the complaint. Punitive damages of up to $250,000.00 are also available.

    Hearings

    STAA also provides for hearings. 49 U.S.C. 31105(b), Specifically, the complainant and the respondent have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing. The filing of objections does not stay a reinstatement ordered in the preliminary order. If a hearing is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

    If a hearing is held, it is to be conducted expeditiously. The Secretary shall issue a final order within 120 days after the conclusion of any hearing. The final order may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding.

    De Novo Review

    STAA provides for de novo review of a whistleblower claim by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of a complaint and the delay is not due to the complainant's bad faith. 49 U.S.C. 31105(c). The provision states that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party.

    Judicial Review

    STAA provides that within 60 days of the issuance of the Secretary's final order following a hearing, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation. 49 U.S.C. 31105(d).

    Civil Actions To Enforce

    STAA provides that if a person fails to comply with an order issued by the Secretary under 49 U.S.C. 31105(b) the Secretary of Labor “shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.” 49 U.S.C. 31105(e).

    Preemption

    STAA clarifies that nothing in the statute preempts or diminishes any other safeguards against discrimination provided by Federal or State law. 49 U.S.C. 31105(f).

    Employee Rights

    STAA states that nothing in STAA shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. 49 U.S.C. 31105(g). It further states that rights and remedies under 49 U.S.C. 31105 “may not be waived by any agreement, policy, form, or condition of employment.”

    III. Prior Rulemaking

    On February 6, 2013, the OSHA published an IFR for SPA whistleblower complaints in the Federal Register establishing the procedures and time frames for the handling of retaliation complaints under SPA, including procedures and time frames for employee complaints to OSHA, investigations by OSHA, objections to OSHA findings and preliminary orders, hearings by ALJs, review of ALJ decisions by the ARB on behalf of the Secretary, and judicial review of the Secretary's final decision. In addition to promulgating the IFR, OSHA's notice included a request for public comment on the interim rules by April 8, 2013. In response to the IFR, two organizations—the Chamber of Shipping of America and the Transportation Trades Department, AFL-CIO, filed comments with the agency within the public comment period. In addition, two individuals—J.I.M. Choate of Stamford, Connecticut, and Lee Luttrell of Las Vegas, Nevada, also filed comments with the agency within the public comment period. In general, commenters supported the IFR's provisions. For example, the Transportation Trades Department stated that the IFR provided “clarity to workers on the actions they can take to remedy dangerous situations, while empowering them with a well-defined route to pursue when they've been wronged.” It also expressed support for the protection of internal complaints. Docket ID OSHA-2011-0841-0005. Only three revisions to the rule were suggested by commenters. First, Mr. Choate recommended that references in the rule to “ALJs” be changed to “judges” because he thought that “ALJ” was “too informal.” Docket ID OSHA-2011-0841-0002. However, OSHA's use of the term “ALJ” appears in many of its other whistleblower protection regulations and is useful in distinguishing between administrative law judges and Article III judges. The Secretary therefore declines to follow this suggestion. Second, the Chamber asked the Secretary to adopt a limited exemption from the work refusal provision in section 1986.102(c)(2) for emergency situations. Third, the Chamber asks that the remedies provisions of sections 1986.109 and 1986.110 include provisions allowing the award of attorney's fees and costs against unsuccessful claimants. Docket ID OSHA-2011-0841-0004. The Secretary also disagrees with these suggestions, which will be discussed further below. Thus, with the exception of coverage provisions, discussed below, the Secretary is carrying over all of the provisions of the IFR into this final rule with only minor technical revisions.

    IV. Summary and Discussion of Regulatory Provisions Subpart A—Complaints, Investigations, Findings, and Preliminary Orders Section 1986.100 Purpose and Scope

    This section describes the purpose of the regulations implementing the SPA whistleblower protection provision and provides an overview of the procedures contained in the regulations.

    Section 1986.101 Definitions

    This section includes general definitions applicable to the SPA whistleblower provision. Most of the definitions are of terms common to whistleblower statutes and are defined here as they are elsewhere. Some terms call for additional explanation.

    SPA prohibits retaliation by a “person.” Title 1 of the U.S. Code provides the definition of this term because there is no indication in the statute that any other meaning applies. Accordingly, “person . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. 1. This list, as indicated by the word “include,” is not exhaustive. See Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term `including' is not one of all embracing definition, but connotes simply an illustrative application of the general principle.” (citation omitted)). Paragraph (j) accordingly defines “person” as “one or more individuals or other entities, including but not limited to corporations, companies, associations, firms, partnerships, societies, and joint stock companies.”

    SPA protects seamen from retaliation for making certain reports and notifications. 46 U.S.C. 2114(a)(1)(A), (D), (G). Paragraphs (h) and (k) define “report” and “notify” both to include “any oral or written communications of a violation.” This interpretation of the statute is consistent with a plain reading of the statutory text and best fulfills the purposes of SPA. See Gaffney v. Riverboat Servs. of Ind., 451 F.3d 424, 445-46 (7th Cir. 2006) (explaining that to interpret SPA's reference to a “report” as requiring a formal complaint “would narrow the statute in a manner that Congress clearly avoided, and, in the process, would frustrate the clear purpose of the provision”). It is also consistent with the legislative history of the statute, which indicates that Congress meant SPA to respond to Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983), a case in which a seaman had told the Coast Guard about an unsafe condition by telephone. S. Rep. No. 98-454, at 11; Donovan, 720 F.2d at 825; see also Gaffney, 451 F.3d at 446 (reasoning that SPA's legislative history, “coupled with Congress' decision not to define `report' in the statute or in the course of discussing Donovan in the relevant legislative history,” indicates that SPA “does not require a formal complaint, or even a written statement, as a prerequisite to statutory whistleblower protection”); cf. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (holding that the provision of the Fair Labor Standards Act that prohibits employers from retaliating against an employee because such employee has “filed any complaint” protects oral complaints).

    In addition, SPA protects seaman complaints and testimony related to “maritime safety law[s] or regulation[s].” Paragraph (g) defines this term as including “any statute or regulation regarding health or safety that applies to any person or equipment on a vessel.” This definition clarifies the meaning of this term in two respects. First, though the statutory text refers to “safety” the Secretary finds that Congress did not intend to exclude regulations that address health hazards; rather, it is apparent that no such distinction was intended. Compare 46 U.S.C. 2114(a)(1)(B) (protecting refusal to perform a duty that would result in a serious injury) with (a)(2) (clarifying that circumstances that would justify a refusal to work under (a)(1)(B) are those that present a “real danger of injury or serious impairment of health”); see also id. (a)(1)(D) (protecting reports of injuries and illnesses). The definition makes clear that laws or regulations addressing either maritime safety or health are included.

    Second, because working conditions on vessels can be subject to regulation by many agencies, the Secretary interprets “maritime safety law or regulation” to include all regulations regarding health or safety that apply to any person or equipment on a vessel under the circumstances at issue. The statute or regulation need not exclusively or explicitly serve the purpose of protecting the safety of seamen, or promoting safety on vessels, to fall within the meaning of this provision of SPA.

    Section 2214(a)(1)(D) of SPA protects a seaman's notification of the “vessel owner” of injuries and illnesses. This would include all notifications to agents of the owner, such as the vessel's master. 2 Robert Force & Martin J. Norris, The Law of Seamen § 25-1 (5th ed. 2003). Other parties that may fall within the meaning of “vessel owner” include an owner pro hac vice, operator, or charter or bare boat charterer. 33 U.S.C. 902(21) (defining, for purposes of the Longshore and Harbor Workers' Compensation Act (LHWCA), the entities liable for negligence of a vessel); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 (5th Cir. 1983) (referring to this list of entities as “the broad definition of `vessel owner' under 33 U.S.C. 902(21)”). Paragraph (q) defines “vessel owner” as including “all of the agents of the owner, including the vessel's master.”

    SPA protects “a seaman” from retaliation, but it does not include a definition of “seaman.” Thus, OSHA is relying on the Senate Report that accompanied the original, 1984 version of SPA. Committee Reports on a bill are useful sources for finding the legislature's intent because they represent the considered and collective understanding of those Members of Congress involved in drafting and studying proposed legislation. Garcia v. United States, 469 U.S. 70, 76 (1984). The Senate Report indicates that SPA was originally intended to provide a remedy for workers whose whistleblower rights under section 11(c) of the OSH Act might be not be available in a circuit that follows Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983).4 See S. Rep. No. 98-454, at 11-12 (1984). The Senate Report also provides specific insight as to the definition of “seaman,” stating that “the Committee intends the term `seaman' to be interpreted broadly, to include any individual engaged or employed in any capacity on board a vessel owned by a citizen of the United States.” Id. at 11.

    4 Nothing in this preamble should be read to suggest that OSHA agrees with the holding or rationale of Texaco.

    OSHA considered three basic approaches for defining the term “seaman”: (a) Mirroring the one established by the Jones Act, 46 U.S.C. 30104, which reflects general maritime law; (b) as a “gap filler” available only in situations where workers arguably lack protection under section 11(c) of the OSH Act because of Texaco; or (c) using the broader definition of “seaman” suggested by the legislative history of SPA discussed above.

    First, OSHA rejected adopting a definition of “seaman” for SPA that mirrors the one established by case law under the Jones Act. The Jones Act provides that a “seaman” injured in the course of employment may bring a civil action against his or her employer, 46 U.S.C. 30104, but, like SPA, the Jones Act does not define the term “seaman.” Looking to general maritime law, the Supreme Court has defined the term as including those who have an employment-related connection to a vessel in navigation that contributes to the function of the vessel or to the accomplishment of its mission, even if the employment does not aid in navigation or contribute to the transportation of the vessel, McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991). Importantly, the Supreme Court views the term “seaman” as excluding land-based workers; that is, a seaman “must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” Chandris v. Latsis, 515 U.S. 347, 368 (1995).

    OSHA is concerned that the Jones Act definition of “seaman” is more restrictive than the definition of the term reflected in the legislative history of the SPA. Were OSHA to adopt the Jones Act definition here, certain workers who are employed on vessels in significant ways, but who are not “seamen” for purposes of the Jones Act, would not be protected. For example, certain riverboat pilots spend substantial time aboard a vessel in furtherance of its purpose, but do not have a connection to a particular vessel or group of vessels, so they have been found not to be covered under the Jones Act. Bach v. Trident Steamship Co., Inc., 920 F.2d 322, aff'd after remand, 947 F.2d 1290 (5th Cir. 1991); Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 379 (E.D. La. 1997). Moreover, there is at least a possibility that under the Texaco analysis, a court would find that such pilots also lack section 11(c) rights when reporting safety violations aboard vessels on which they are working.

    Second, OSHA rejected the approach of defining “seaman” as applying only to workers who arguably are not covered by section 11(c). The legislative history shows that Congress originally passed the SPA in response to Texaco: “This section responds to Donovan v. Texaco, (720 F.2d 825 5th Cir. 1983)) in which a seaman was demoted and ultimately discharged from his job for reporting a possible safety violation to the Coast Guard . . . [This section] establishes a new legal remedy for seamen, to protect them against discriminatory action due to their reporting a violation of Subtitle II to the Coast Guard. The Amendment creates a private right of action similar but not identical to that in OSH Act section 11(c).” S. Rep. No. 98-454, at 11-12 (1984). But the legislative history in 2010 suggests a broader definition for “seaman,” which includes workers who may also be covered by section 11(c). On a more practical level, OSHA could not fashion a clear definition of “seaman” that squarely fills the gap arguably left by Texaco without requiring agency investigators to conduct a complex case-by-case analysis of whether each SPA complainant is exempt from the OSH Act under the rationale of Texaco, a holding with which the Department does not agree.

    Thus, the final rule adopts the third option—the broader definition of “seaman” as clarified in the legislative history of SPA. The first sentence of paragraph (m) incorporates the language of the Senate report to define “seaman” insofar as the term includes “any individual engage or employed in any capacity on board” certain types of vessels. As indicated in the report, and consistent with the remedial purposes of whistleblower protection statutes like SPA, OSHA intends that the regulatory language be construed broadly. Whirlpool Corporation v. Marshall, 445 U.S. 1, 13 (1980); Bechtel Const. Co. v Sec'y of Labor, 50 F.3d 926, 932 (11th Cir. 1995). Workers who are seamen for purposes of the Jones Act or general maritime law, see, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995), are covered by the definition, as are land-based workers, if they are “engaged or employed . . . on board a vessel” for some part of their duties. H. Rep. No. 111-303, pt. 1, at 119 (2009) (noting that SPA extends protections to “maritime workers”).

    Finally, paragraph (m) includes an additional sentence indicating that former seamen and applicants are included in the definition. Such language is included in the definition of “employee” in the regulations governing other OSHA-administered whistleblower protection laws, such as STAA (29 CFR 1978.101(h)), the National Transit Systems Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This interpretation is consistent with the Supreme Court's reading of the term “employee” in 42 U.S.C. 2000e-3a, the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, to include former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the Court's reasons for this interpretation was the lack of temporal modifiers for the term “employee”; the reinstatement remedy, which only applies to former employees; and the remedial purpose of preventing workers from being deterred from whistleblowing because of a fear of blacklisting. These reasons apply equally to SPA and the other whistleblower provisions enforced by OSHA.

    In the IFR, OSHA sought comments on these alternative approaches to defining “seaman,” and received no objections to the approach described above. OSHA has retained the portion of the definition dealing with the functions of a seaman in the final rule. The definition of “seaman” adopted in these regulations is based on and limited to SPA. Nothing should be inferred from the above discussion or the regulatory text about the meaning of “seaman” under the OSH Act or any other statute administered by the Department of Labor.

    Part of the definition of “seaman” in the final rule, however, has changed from that of the IFR. As in the IFR, the definition of “seaman” limits the term to individuals “engaged or employed on board” a subset of vessels. Both the IFR and the final rule protect individuals working on “any vessel owned by a citizen of the United States,” but the final rule also extends coverage to individuals engaged on “a U.S. flag vessel.” Because all U.S.-flag vessels must be owned by citizens of the United States, as defined in 46 U.S.C. 12103 (providing general eligibility requirements for vessel documentation) and 46 CFR part 67 Subpart C (defining citizen-owners of vessels for the purposes of Coast Guard regulations), covering all individuals employed or engaged on U.S.-flag vessels would effectuate the Congressional intent that individuals working on any vessel owned by a citizen of the United States be regarded as seamen under SPA. S. Rep., at 11. Furthermore, since most U.S.-flag vessels are required to comply with many Coast Guard maritime safety regulations, such as those in 46 CFR Chapter I, Subchapter I (see 46 CFR 90.05-1) (inspected vessels), 46 CFR Chapter I, Subchapter C, Part 24 (see 46 CFR 24.05-1(a) (uninspected vessels), and 46 CFR Chapter I, Subchapter C, Part 28 (see 46 CFR 28.30(a)) (uninspected commercial fishing industry vessels), covering those who work aboard U.S.-flag vessels will effectuate one of the main purposes of SPA—to encourage the reporting of violations of maritime safety regulations. 46 U.S.C. 2114(a)(1)(A). Moreover, determining whether a vessel is a U.S.-flag vessel is easy for those who work aboard vessels, as well as for OSHA investigators. Also, members of the Armed Forces are not covered under SPA in order not to interfere with military necessities. As noted above, OSHA has retained within the final rule's definition of “seaman,” individuals working on vessels owned by “a citizen of the United States.” This part of the definition is still relevant because it provides coverage to employees of foreign-flagged vessels owned by U.S. citizens.

    As in the IFR, the final rule defines the term “Citizen of the United States,” but OSHA has changed that definition. The IFR defined “citizen of the United States” in 29 CFR 1986.101(d) (2013) as an individual who is a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)), The IFR also defined the phrase to include a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States. The controlling interest in a corporation is owned by citizens of the United States if title to the majority of the stock in the corporation is vested in citizens of the United States, the majority of the voting power in the corporation is vested in citizens of the United States, there is no contract or understanding by which the majority of the voting power in the corporation may be exercised, directly or in directly, on behalf of a person not a citizen of the United States, and there is no other means by which control of the corporation is given to or permitted to be exercised by a person not a citizen of the United States.. The definition also stated that a corporation is only a citizen of the United States if it is incorporated under the laws of the United States or a State, its chief executive officer, by whatever title, and the chairman of its board of directors are citizens of the United States, and no more of its directors are non-citizens than a minority of the number necessary to constitute a quorum.

    OSHA is retaining the portion of that definition dealing with the criteria for an individual to be a United States citizen for the purposes of SPA. As before, a natural person is a “citizen of the United States” if he or she is a U.S. citizen for purposes of the Immigration and Nationality Act—the test used to determine U.S. citizenship for natural persons in 46 U.S.C. 104, which applies to all of Title 46 of the United States Code on shipping. OSHA is also retaining the requirement that the controlling interest of a corporation, partnership, association, or other business entity interest be owned by citizens of the United States, but, after further evaluation of relevant statutory provisions and case law, OSHA has decided to substantially simplify the description of what it means for U.S. citizens to own a “controlling interest” in a corporation, partnership, association, or other business entity. The lengthy provisions of the IFR setting forth these criteria have been replaced with a straightforward explanation that the controlling interest in a corporation is owned by citizens of the United States if a majority of the stockholders are citizens of the United States.

    Finally, OSHA has expressly included corporations “incorporated under the laws of the United States or a State,” any corporation, partnership, association, or other business entity “whose principal place of business or base of operations is in a State,” and federal and state governmental entities within definition of “Citizen of the United States.”

    OSHA decided to make these changes for a number of reasons. First, the IFR definition of “Citizen of United States” with respect to corporate and other juridical entities was derived from a subtitle of Title 46 of the United States Code, which is not as closely related to the purposes of SPA as the subtitle in which SPA is located. The language of the IFR specifying what connections a corporation must have with the United States in order to be classified as a “Citizen of the United States” was derived from 46 U.S.C. 50501. That provision specifies which corporations and other entities are deemed to be citizens of the United States for the purposes of Subtitle V of Title 46. That subtitle promotes the development of the U.S. merchant marine through financial assistance and promotional programs, among other things. SPA, however, is in Subtitle II, Vessels and Seamen, which has a major emphasis on maritime safety. See, e.g., Part A—General Provisions (including a provision on penalties for the negligent operation of vessels (46 U.S.C. 2302) and SPA (46 U.S.C. 2114); Part B—Inspection and Regulation of Vessels, including the provisions authorizing many Coast Guard maritime safety regulations, such as 46 U.S.C. 3306 (inspected vessels), 46 U.S.C. 4102 (uninspected vessels), and 46 U.S.C. 4502 (uninspected commercial fishing industry vessels)). Subtitle II also has provisions on the documentation of U.S. flag vessels, including the criteria for U.S. citizen ownership of vessels. 46 U.S.C. 12103. One of the main purposes of SPA is to encourage the reporting of violations of Coast Guard maritime safety regulations. 46 U.S.C. 2114(a)(1)(A) (prohibiting retaliation against a seaman for reporting a violation of maritime safety regulations). Thus, the provisions regarding U.S. citizen ownership of vessels in 46 U.S.C. 50501, which is in Subtitle V, are not appropriate in this context.

    Second, the IFR's criteria for determining if a corporation, partnership, association, or other business entity is a U.S. citizen were unduly restrictive and thus did not effectuate the Congressional intent that the term “seaman” in SPA be construed broadly. S. Rep. at 11. As can be seen from the IFR text above, ownership by a U.S. citizen of a controlling interest in the corporation was the sole basis for that corporation's U.S. citizenship, and ownership of a controlling interest was, itself, defined narrowly. The vesting of title to the majority of the corporation's stock in U.S. citizens had to be free of any trust or fiduciary obligation in favor of a foreign citizen, a majority of the voting power had to be vested in U.S. citizens; there could be no contract or understanding by which a majority of the voting power in the corporation could have been exercised, directly or indirectly, on behalf of a foreign citizen; and there could be no other means by which control of the corporation was given to or permitted to be exercised by a foreign citizen. Furthermore, the IFR provided that the corporation had to be incorporated under the laws of the United States or a State; its chief executive officer, by whatever title, and the chairman of its board of directors had to be citizens of the United States; and no more of its directors could be noncitizens than a minority of the number necessary to constitute a quorum. These qualifications unnecessarily narrowed the scope of the term “seaman” in contradiction to the Senate Report, which stated that the term “seaman” should be read broadly. S. Rep. at 11.

    Third, because the test of U.S. citizenship for corporations, partnerships, associations, or other business entities turned on the criteria for ownership of a controlling interest of these entities, most of the definition was complex. Determining whether the criteria had been met would have been difficult and time-consuming for workers aboard vessels who may want to report violations of maritime safety laws or injuries or who want to refuse to perform dangerous work, for OSHA whistleblower investigators, and even for supervisors aboard the vessels.

    Finally, OSHA decided to expressly include corporations incorporated under the laws of the United States or any State and corporations, partnerships, associations, and other business entities, whose principal places of business or bases of operations are in States within the definition of “Citizen of the United States” because entities such as these have long been considered by courts to be U.S. citizens in the maritime context.

    In Lauritzen v. Larsen, 345 U.S. 571 (1953), a leading maritime law decision, the Supreme Court set forth a multifactor test for determining whether United States law applied to a maritime tort claim. One of the most important factors is the citizenship of the defendant shipowner, Id. at 587. In reviewing this factor the Court cited with approval Gerradin v. United States, 60 F.2d 927 (2nd Cir.), in which the court regarded a vessel owner incorporated in New York as a citizen of the United States and imposed liability for a maritime injury to a cook's mate aboard that vessel, despite the fact that the vessel flew a foreign flag. Lauritzen, 345 U.S. at 587, n.24; see also Farmer v. Standard Dredging Corp., 167 F. Supp. 381, 383-84 (D. Delaware 1958) (applying United States law to maritime injury because shipowner was a Delaware corporation); cf., 28 U.S.C. 1332(c)(1) (providing that for the purposes of federal court diversity jurisdiction, a corporation is citizen of state in which it is incorporated). Since SPA bans retaliation for the reporting of maritime injuries, see 46 U.S.C. 2114(a)(1)(D) and (F), and other related activities, such as the reporting of violations of maritime safety regulations, designed to prevent injuries, see 46 U.S.C. 2114(a)(1)(A), it is appropriate to look to a maritime case such as Lauritzen for guidance.

    A corporation, partnership, association, or other business entity will also be regarded as a citizen of the United States if its principal place of business or base of operations is in a State. The location of a shipowner's principal place of business or base of operations in the United States is an important factor in favor of applying U.S. maritime law. Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 308-309 (1970) (applying U.S. law to claims by a permanent resident alien seaman aboard foreign-flag vessel where base of operations of defendant corporate shipowner was in the United States); cf. 28 U.S.C. 1332(c) (providing that for the purposes of federal court diversity jurisdiction, a corporation is citizen of State in which its principal place of business is located).

    As discussed above, the test for determining if a U.S. citizen “owns a controlling interest” in the corporation has been simplified to include situations in which a majority of the corporation's stockholders are U.S. citizens. This interpretation is based on decisions analyzing the Lauritzen factors, which have relied on U.S, citizen stockholder ownership of a foreign corporation to apply U.S. law in maritime cases where the vessel was owned by a foreign corporation. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1032 (5th Cir. 1984); Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307, 310 (2nd Cir. 1976); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2nd Cir. 1974); Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 1026-1027 (2nd Cir. 1973); Bartholomew v. Universe Tankships, 263 F.2d 437, 442 (2nd Cir. 1959).

    The term “Citizen of the United States” is also defined to include governmental entities “of the Federal Government of the United States, of a State, or of a political subdivision of State.” This interpretation is based on one of the Coast Guard's definitions of citizenship for the purposes of determining eligibility for vessel documentation. See 46 CFR 67.41 (providing that a governmental entity is citizen for purposes of vessel documentation); 46 CFR 67.3 (defining the term “State” to include a political subdivision thereof); cf. 46 U.S.C. 31102 (providing that a civil action in personam in admiralty may be brought against the United States for damages caused by a public vessel of the United States).

    Paragraph (p) defines “vessel,” a term used in the definition of “seaman” and in SPA itself. This definition is taken from Title 46 of the U.S. Code and “includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 46 U.S.C. 115; see also 1 U.S.C. 3; Stewart v. Dutra Constr. Co., 543 U.S. 481, 496-97 (2005) (analyzing the meaning of the term “vessel,” as defined by 1 U.S.C. 3, and concluding that “a `vessel' is a watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment,” and thus excludes ships “taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport”).

    Section 1986.102 Obligations and Prohibited Acts

    This section describes the activities that are protected under SPA and the conduct that is prohibited in response to any protected activities. These protected activities are set out in the statute, as described above. Consistent with OSHA's interpretation of other anti-retaliation provisions, the prohibited conduct includes any form of retaliation, including, but not limited to, discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman. Section 1986.102 tracks the language of the statute in defining the categories of protected activity.

    As with other whistleblower statutes, SPA's provisions describing protected activity are to be read broadly. See, e.g., Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 20-21 (1st Cir. 1998) (expansively construing language in STAA to facilitate achieving the policy goals of encouraging corporate compliance with safety laws and employee reports of violations of those laws); Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) (“[I]t is appropriate to give a broad construction to remedial statutes such as nondiscrimination provisions in federal labor laws.”); Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993) (discussing the “broad remedial purpose” of the whistleblower provision in the Clean Water Act in expansively interpreting a term in that statute). Indeed, SPA's prohibition of discharging or “in any manner” discriminating against seamen indicates Congress's intent that the provision have broad application. See NLRB v. Scrivener, 405 U.S. 117, 122 (1972) (determining that language in the National Labor Relations Act should be read broadly because “the presence of the preceding words `to discharge or otherwise discriminate' reveals, we think, particularly by the word `otherwise,' an intent on the part of Congress to afford broad rather than narrow protection to the employee”); Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772, 782-83 (D.C. Cir. 1974) (relying on Scrivener in reasoning that the words “in any other way discriminate” in the Mine Safety Act support a broad reading of that Act's protections for miners). Likewise, the statement in the Senate Report regarding SPA that the term “seaman” is to be “interpreted broadly” further supports the premise that Congress did not intend that SPA be construed narrowly. S. Rep. No. 98-454, at 11 (1984).

    OSHA therefore will interpret each of the seven types of protected activity listed in the Act broadly. Moreover, while SPA, unlike other whistleblower statutes, does not contain a provision directly protecting all internal complaints by seamen to their superiors, many such complaints are covered under the seven specific categories listed in the Act. Protection of internal complaints is important because it “leverage[s] the government's limited enforcement resources” by encouraging employees to report substandard working conditions to their employers. Clean Harbors, 146 F.3d at 19-20. Such protections promote the resolution of violations without drawn-out litigation, and the “failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.” Minor v. Bostwick Laboratories, Inc., 669 F.3d 428, 437 (4th Cir. 2012). The Transportation Trades Department, AFL-CIO, supported this approach in its comment, noting that “internal communication aids in keeping vessels safe.” Docket ID OSHA-2011-0841-0005. In addition, in the maritime context, a seaman on a vessel at sea may not be able to contact the authorities to correct a dangerous condition, and his or her only recourse will be to seek correction from the ship's officers. Because internal complaints are an important part of keeping a workplace safe, OSHA will give a broad construction to the Act's language to ensure that internal complaints are protected as fully as possible.

    The statute first prohibits retaliation because “the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred.” 46 U.S.C. 2114(a)(1)(A). One way an employer will know that a seaman “is about to report” the violation is when the seaman has made an internal complaint and there are circumstances from which a reasonable person would understand that the seaman will likely report the violation to an agency if the violation is not cured. These circumstances might arise from the internal report itself (e.g., “I will contact the authorities if it is not fixed”), the seaman's history of reporting similar violations to authorities, or other similar considerations. Further, given that a seaman may be at sea for extended periods without access to ways of reporting a violation, a significant time may elapse between the time the employer learns of the seaman's intent to report and the time the report can actually be made. OSHA will read the phrase “about to report” broadly to protect the seaman in such a circumstance. Furthermore, since one of the main purposes of SPA is to promote the provision of accurate information to government agencies about unsafe conditions on vessels, OSHA will also read this phrase to protect a seaman's refusing to lie to an agency about unsafe vessel conditions or protesting being forced to tell such lies. Cf. Donovan on Behalf of Anderson v. Stafford Const. Co., 732 F.2d 954, 959-60 (D.C. Cir. 1984) (employee's telling company officials that she would not lie to Mine Safety and Health Administration investigators is activity protected by anti-retaliation provision of Federal Mine Safety and Health Act).

    The Act also protects the seaman against discrimination when “the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public.” 46 U.S.C. 2114(a)(1)(B). To qualify for this protection, the seaman “must have sought from the employer, and been unable to obtain, correction of the unsafe condition.” 46 U.S.C. 2114(a)(3). Although not stated explicitly, in the Secretary's view, the reasonable implication of the statutory language is that the seaman's preliminary act of seeking correction of the condition is itself protected activity. That is, a seaman who asks his or her employer to correct a condition he or she reasonably believes would result in serious injury and suffers retaliation because of that request before the occasion to refuse to perform the unsafe work arises is protected by the Act. Although the literal terms of the Act could be read to leave the request for correction required yet unprotected, courts reject “absurd result[s].” Stone v. Instrumentation Laboratory Co., 591 F.3d 239, 243 (4th Cir. 2009) (“Courts will not . . . adopt a `literal' construction of a statute if such interpretation would thwart the statute's obvious purpose or lead to an `absurd result.' ” [quoting Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert County, 401 F.3d 274, 280 (4th Cir. 2005)]). The Agency's interpretation is embodied in the last sentence of section 1986.102(c): “Any seaman who requests such a correction shall be protected against retaliation because of the request.”

    The Chamber of Shipping of America submitted a comment generally supportive of the right to refuse unsafe work recognized by section 1986.102(c)(2). Every employee, the Chamber agreed, “has not only a right but a responsibility to report unsafe working conditions to their supervisor in order that these concerns can be addressed before work begins.” It said that its members have enacted policies which recognize that “every mariner on board a ship “is a part of the workplace safety team,” and Chamber members “agree that the best protection against future claims of retaliation is the creation of a reporting process for employees to use when the have safety concerns which necessarily must include actions taken by senior officers on board as well as shore management in response to those concerns.” Docket ID OSHA-2011-0841-0004.

    However, while supporting a seaman's the right to refuse unsafe work (once correction has been sought) in the context of normal operating conditions of the vessel, the Chamber argued that there should be no such protection in emergency conditions. For example, the Chamber noted, heavy weather, a sea rescue, or a shipboard emergency, such as fire, may jeopardize the ship and all who are aboard her, and in these situations actions may be necessary that would “give any reasonable individual a reasonable apprehension of injury even in light of the advanced training skills possessed by mariners.” In these situations “it is absolutely critical that senior officers managing the emergency be able to issue orders to mariners and expect them to be followed in order to execute the necessary and timely response.” Thus, the Chamber suggested amending section 1986.102(c)(2) as follows (additions italicized):

    Refused to perform duties associated with the normal operation of the vessel, ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public. Prohibited acts do not include duties ordered by the seaman's employer deemed necessary to protect the lives of the crew in emergency situations.

    Docket ID OSHA-2011-0841-0004.

    OSHA recognizes that a ship-owner and its agents must be able to respond effectively to an emergency that threatens the ship and those aboard her. However, OSHA has decided against amending the regulation as suggested by the Chamber. The work refusal provision in the regulation is taken directly from the statute (sec. 2114(a)(1)(B)), and there is nothing in the statutory language that explicitly limits the refusal right in emergencies. Moreover, the language proposed by the Chamber could shift the balance struck by Congress between the employer and seaman by giving the employer the ability to chill refusals to work by interpreting “emergency situations” broadly. Such a result would be counter to the broad remedial purpose of the statute. Moreover, the record contains insufficient information from which to shape the contours of an appropriate rule, and the Secretary is unaware of any such cases that have arisen under the statute.

    Nonetheless, there may be some situations in which it would be inappropriate to award relief to a seaman who had refused to engage in lifesaving activities in an emergency situation. It would be problematic to interpret the statutory work refusal provision in sec. 2114(a)(1)(B)—which is aimed at the safety of seaman—in a way that might actually directly endanger them. However, the Secretary believes that these situations will be rare and are better decided on a case-by-case basis in the context of adjudication rather than through a categorical rule. Factors to be considered in such situations could include, but are not necessarily limited to, the nature of the emergency, the work ordered to be performed, the seaman's training and duties, and the opportunities that existed to do the work in a safer way.

    SPA provides protection to certain other types of internal communications. It covers the situation where “the seaman notified, or attempted to notify, the vessel owner or the Secretary [of the department in which in Coast Guard is operating] of a work-related personal injury or work-related illness of a seaman.” 46 U.S.C. 2114(a)(1)(D). As noted above, this covers oral, written and electronic communications to any agent of the vessel's owner. SPA also disallows retaliation because “the seaman accurately reported hours of duty under this part.” 46 U.S.C. 2114(a)(1)(G). In keeping with the discussion above, this language too should be interpreted in favor of broad protection for seamen should a question of its meaning arise.

    Finally, consistent with the broad interpretation of the statute as discussed above, OSHA believes that most reports required by the U.S. Coast Guard under 46 CFR parts 4.04 and 4.05 are protected by SPA.

    Section 1986.103 Filing of Retaliation Complaints

    This section describes the process for filing a complaint alleging retaliation in violation of SPA. The procedures described are consistent with those governing complaints under STAA as well as other whistleblower statutes OSHA administers.

    Under paragraph (a), complaints may be filed by a seaman or, with the seaman's consent, by any person on the seaman's behalf. Paragraph (b) provides that complaints filed under SPA need not be in any particular form; they may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. Paragraph (c) explains with whom in OSHA complaints may be filed.

    Paragraph (d) addresses timeliness. To be timely, a complaint must be filed within 180 days of the occurrence of the alleged violation. Under Supreme Court precedent, a violation occurs when the retaliatory decision has been both “made and communicated to” the complainant. Del. State College v. Ricks, 449 U.S. 250, 258 (1980). In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision. EEOC v. United Parcel Serv., 249 F.3d 557, 561-62 (6th Cir. 2001). A complaint will be considered filed on the date of postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office. The regulatory text indicates that filing deadlines may be tolled based on principles developed in applicable case law. Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 1984).

    Paragraph (e), which is consistent with provisions implementing other OSHA whistleblower programs, describes the relationship between section 11(c) complaints and SPA whistleblower complaints. Section 11(c) of the OSH Act, 29 U.S.C. 660(c), generally prohibits employers from retaliating against employees for filing safety or health complaints or otherwise initiating or participating in proceedings under the OSH Act. Some of the activity protected by SPA, including maritime safety complaints and work refusals, may also be covered under section 11(c), though the geographic limits of section 4(a) of the OSH Act, 29 U.S.C. 653(a), which are applicable to section 11(c), do not apply to SPA.5 Paragraph (e) states that SPA whistleblower complaints that also allege facts constituting a section 11(c) violation will be deemed to have been filed under both statutes. Similarly, section 11(c) complaints that allege facts constituting a violation of SPA will also be deemed to have been filed under both laws. In these cases, normal procedures and timeliness requirements under the respective statutes and regulations will apply.

    5 SPA contains no geographic limit; its scope is limited only by the definition of “seaman.”

    OSHA notes that a complaint of retaliation filed with OSHA under SPA is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Sylvester v. Parexel Int'l, Inc., No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts the Agency to the existence of the alleged retaliation and the complainant's desire that the Agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary is to determine whether “the complaint, supplemented as appropriate by interviews of the complainant” alleges “the existence of facts and evidence to make a prima facie showing.” 29 CFR 1986.104(e). As explained in section 1986.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See 49 U.S.C. 42121(b)(2), 29 CFR 1986.104(e).

    Section 1986.104 Investigation

    This section describes the procedures that apply to the investigation of complaints under SPA. Paragraph (a) of this section outlines the procedures for notifying the parties and the U.S. Coast Guard of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) explains that the Agency will share respondent's submissions with the complainant, with redactions in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws as necessary, and will permit the complainant to respond to those submissions. The Agency expects that sharing information with complainants will assist it in conducting full and fair investigations and thoroughly assessing defenses raised by respondents. Paragraph (d) of this section discusses the confidentiality of information provided during investigations.

    Paragraph (e) sets forth the applicable burdens of proof. As discussed above, SPA adopts the relevant provisions of STAA, which in turn adopts the burdens of proof under AIR21. Dady v. Harley Marine Services, Inc., Nos. 13-076, 13-077, 2015 WL 4674602, at *3 (ARB July 21, 2015), petition filed, (11th Cir. Sept. 14. 2015) (No. 15-14110). A complainant must make an initial prima facie showing that protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011). The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action.

    If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same framework now found in STAA and therefore SPA, served a “gatekeeping function” that “stemm[ed] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under SPA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that the protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

    Paragraph (f) describes the procedures the Assistant Secretary will follow prior to the issuance of findings and a preliminary order when the Assistant Secretary has reasonable cause to believe that a violation has occurred. Its purpose is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a STAA respondent the opportunity to review the substance of the evidence and respond, prior to ordering preliminary reinstatement).

    Section 1986.105 Issuance of Findings and Preliminary Orders

    This section provides that, within 60 days of the filing of a complaint and on the basis of information obtained in the investigation, the Assistant Secretary will issue written findings regarding whether there is reasonable cause to believe that the complaint has merit. If the Assistant Secretary concludes that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including: A requirement that the person take affirmative action to abate the violation; reinstatement to the seaman's former position; compensatory damages, including back pay with interest and damages such as litigation fees and costs; and punitive damages up to $250,000, where appropriate. Affirmative action to abate the violation includes a variety of measures, such as posting notices about SPA orders and rights, as well as expungement of adverse comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of STAA orders and rights); Pollock v. Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of adverse references).

    The findings and, where appropriate, the preliminary order, advise the parties of their right to file objections to the findings and the preliminary order of the Assistant Secretary and to request a hearing. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

    In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his termination, but not actually return to work. Smith v. Lake City Enterprises, Inc., Nos. 09-033, 08-091, 2010 WL 3910346, at *8 (ARB Sept. 24, 2010) (holding that an employer who violated STAA was to compensate the complainant with “front pay” when reinstatement was not possible). Such front pay or economic reinstatement is also employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a possible remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. Hagman v. Washington Mutual Bank, , ALJ No. 2005-SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while reinstatement is the “preferred and presumptive remedy” under Sarbanes-Oxley, “[f]ront pay may be awarded as a substitute when reinstatement is inappropriate due to: (1) An employee's medical condition that is causally related to her employer's retaliatory action . . .; (2) manifest hostility between the parties . . .; (3) the fact that claimant's former position no longer exists . . .; or (4) the fact that employer is no longer in business at the time of the decision”); Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001) (noting circumstances in which front pay may be available in lieu of reinstatement but ordering reinstatement); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (Jan. 15, 2010) (same). Congress intended that seamen be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of SPA. When OSHA finds a violation, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the seaman. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the seaman continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating a seaman should the employer ultimately prevail in the whistleblower adjudication.

    In ordering interest on back pay, the Secretary has determined that, instead of computing the interest due by compounding quarterly the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points, interest will be compounded daily. The Secretary believes that daily compounding of interest better achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board. Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

    Subpart B—Litigation Section 1986.106 Objections to the Findings and the Preliminary Order and Request for a Hearing

    To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record and the OSHA official who issued the findings, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

    A respondent may file a motion to stay OSHA's preliminary order of reinstatement with the Office of Administrative Law Judges. However, a stay will be granted only on the basis of exceptional circumstances. OSHA believes that a stay of the Assistant Secretary's preliminary order of reinstatement would be appropriate only where the respondent can establish the necessary criteria for a stay, i.e., the respondent would suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

    Section 1986.107 Hearings

    This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 29 CFR part 18 subpart A. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. If both the complainant and respondent object to the findings and/or preliminary order of the Assistant Secretary, an ALJ will conduct a single, consolidated hearing. This section states that ALJs have broad power to limit discovery in order to expedite the hearing. This furthers an important goal of SPA—to have unlawfully terminated seamen reinstated as quickly as possible.

    This section explains that formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. This is consistent with the Administrative Procedure Act, which provides at 5 U.S.C. 556(d): “Any oral or documentary evidence may be received, but the Agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. . . .” Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948) (administrative agencies not restricted by rigid rules of evidence). Furthermore, it is inappropriate to apply the technical rules of evidence in part 18 because OSHA anticipates that complainants will often appear pro se, as is the case with other whistleblower statutes the Department of Labor administers. Also, hearsay evidence is often appropriate in whistleblower cases, as there often is no relevant evidence other than hearsay to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given to such evidence. For these reasons the interests of determining all of the relevant facts are best served by not having strict evidentiary rules.

    Section 1986.108 Role of Federal Agencies

    Paragraph (a)(1) of this section explains that the Assistant Secretary, represented by an attorney from the appropriate Regional Solicitor's office, ordinarily will be the prosecuting party in cases in which the respondent objects to the findings or the preliminary reinstatement order. This has been the practice under STAA, from which the SPA's procedures are drawn, and the public interest generally requires the Assistant Secretary's participation in such matters. The case reports show that there has been relatively little litigation under SPA to date, and OSHA believes that relatively few private attorneys have developed adequate expertise in representing SPA whistleblower complainants.

    Where the complainant, but not the respondent, objects to the findings or order, the regulations retain the Assistant Secretary's discretion to participate as a party or amicus curiae at any stage of the proceedings, including the right to petition for review of an ALJ decision.

    Paragraph (a)(2) clarifies that if the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1), he or she may, upon written notice to the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party and the ALJ will issue appropriate orders to regulate the course of future proceedings.

    Paragraph (a)(3) provides that copies of documents in all cases must be sent to all parties, or if represented by counsel, to them. If the Assistant Secretary is participating in the proceeding, copies of documents must be sent to the Regional Solicitor's office representing the Assistant Secretary.

    Paragraph (b) states that the U.S. Coast Guard, if interested in a proceeding, also may participate as amicus curiae at any time in the proceeding. This paragraph also permits the U.S. Coast Guard to request copies of all documents, regardless of whether it is participating in the case.

    Section 1986.109 Decisions and Orders of the Administrative Law Judge

    This section sets forth in paragraph (a) the requirements for the content of the decision and order of the ALJ. Paragraphs (a) and (b) state the standards for finding a violation under SPA and for precluding such a finding.

    Specifically, the complainant must show that the protected activity was a “contributing factor” in the adverse action alleged in the complaint. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Clarke, supra, at *3. The complainant (a term that, in this paragraph, refers to the Assistant Secretary if he or she is the prosecuting party) can succeed by providing either direct or indirect proof of contribution. Direct evidence is evidence that conclusively connects the protected activity and the adverse action and does not rely upon inference. If the complainant does not produce direct evidence, he or she must proceed indirectly, or inferentially, by proving by a preponderance of the evidence that an activity protected by SPA was the true reason for the adverse action. One type of indirect, also known as circumstantial, evidence is evidence that discredits the respondent's proffered reasons for the adverse action, demonstrating instead that they were pretext for retaliation. Id. Another type of circumstantial evidence is temporal proximity between the protected activity and the adverse action. Ferguson, supra, at *2. The respondent may avoid liability if it “demonstrates by clear and convincing evidence” that it would have taken the same adverse action in any event. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probably or reasonably certain. Clarke, supra, at *3.

    Paragraph (c) provides that the Assistant Secretary's determinations about when to proceed with an investigation and when to dismiss a complaint without an investigation or without a complete investigation are discretionary decisions not subject to review by the ALJ. The ALJ therefore may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. If there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if warranted by the facts and circumstances.

    Paragraph (d)(1) describes the remedies that the ALJ may order and provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. (See the earlier discussion of section 1986.105.) In addition, paragraph (d)(2) in this section requires the ALJ to issue an order denying the complaint if he or she determines that the respondent has not violated SPA.

    The Chamber of Shipping of America requested that section 1986.109 and .110 be amended to allow awards to employers of attorney fees and litigation costs against claimants found to have made frivolous or fraudulent claims. Docket ID OSHA-2011-0841-0004. The Secretary declines to do so. Under the American Rule, generally parties must bear their own costs of litigation unless expressly authorized by Congress. Key Tronic v. United States, 511 U.S. 809, 814 (1994); Aleyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); Unbelievable, Inc. v. NLRB, 118 F.3d 795, 805 (D.C. Cir. 1997) (holding that the NLRB does not have the authority to depart from the American Rule to award attorney's fees incurred because of the assertion of frivolous defenses). There is no such expression of intent here: There is no language in either SPA or STAA entitling respondents to recover attorney's fees. Indeed STAA, which is incorporated by SPA, expressly allows successful claimants to recover attorney's fees; the statute's failure to make a similar provision for employers only serves to underscore the fact that Congress did not intend to award them. Similarly, other whistleblower statues that OSHA administers do allow respondents to recover for frivolous or bad faith claims. See, e.g., 6 U.S.C. 1142(c)(3)(D); 15 U.S.C. 2087(b)(3)(C); 49 U.S.C. 42121(b)(3)(C). This also cuts against the idea that Congress intended them here. The Secretary may only award those remedies Congress has actually empowered him to award. Filiberti v. Merit Sys. Prot. Bd., 804 F.2d 1504, 1511-12 (9th Cir. 1986) (citing Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 322 (1961)). Finally, the point of SPA is to provide assurance to seamen that they are free to report safety concerns. The addition of a potential sanction for filing a claim under the Act has the potential to undercut that goal. Thus, OSHA rejects the Chamber's suggestion here.

    Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting a preliminary order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB.

    Section 1986.110 Decisions and Orders of the Administrative Review Board

    Paragraph (a) sets forth rules regarding seeking review of an ALJ's decision with the ARB. Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. In addition to being sent to the ARB, the petition is to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and, in cases in which the Assistant Secretary is a party, the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Consistent with the procedures for petitions for review under other OSHA-administered whistleblower laws, paragraph (b) of this section indicates that the ARB has discretion to accept or reject review in SPA whistleblower cases. Congress intended these whistleblower cases to be expedited, as reflected by the provision in STAA, which applies to SPA, providing for a hearing de novo in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint. Making review of SPA whistleblower cases discretionary may assist in furthering that goal. As noted in paragraph (a) of this section, the parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary.

    When the ARB accepts a petition for review, the ARB will review the ALJ's factual determinations under the substantial evidence standard. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. In exceptional circumstances, however, the ARB may grant a motion to stay an ALJ's order of reinstatement. A stay of a preliminary order of reinstatement is appropriate only where the respondent can establish the necessary criteria for a stay, i.e., the respondent will suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

    Paragraph (c) incorporates the statutory requirement that the Secretary's final decision be issued within 120 days of the conclusion of the hearing. The hearing is deemed concluded 14 days after the date of the ALJ's decision unless a motion for reconsideration has been filed with the ALJ, in which case the hearing is concluded on the date the motion for reconsideration is ruled upon or 14 days after a new ALJ decision is issued. This paragraph further provides for the ARB's decision in all cases to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor, even if the Assistant Secretary is not a party.

    Paragraph (d) describes the remedies the ARB can award if it concludes that the respondent has violated SPA. (See the earlier discussion of remedies at section 1986.105 and .109.) Under paragraph (e), if the ARB determines that the respondent has not violated the law, it will issue an order denying the complaint.

    Subpart C—Miscellaneous Provisions Section 1986.111 Withdrawal of SPA Complaints, Findings, Objections, and Petitions for Review; Settlement

    This section provides procedures and time periods for the withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It also provides for approval of settlements at the investigative and adjudicative stages of the case.

    Paragraph (a) permits a complainant to withdraw, orally or in writing, his or her complaint to the Assistant Secretary at any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order. The Assistant Secretary will confirm in writing the complainant's desire to withdraw and will determine whether to approve the withdrawal. If approved, the Assistant Secretary will notify all parties if the withdrawal is approved. Complaints that are withdrawn pursuant to settlement agreements prior to the filing of objections must be approved in accordance with the settlement approval procedures in paragraph (d). The complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.

    Under paragraph (b), the Assistant Secretary may withdraw his or her findings and/or preliminary order at any time before the expiration of the 30-day objection period described in section 1986.106, if no objection has yet been filed. The Assistant Secretary may substitute new findings and/or a preliminary order, and the date of receipt of the substituted findings and/or order will begin a new 30-day objection period.

    Paragraph (c) addresses situations in which parties seek to withdraw either objections to the Assistant Secretary's findings and/or preliminary order or petitions for review of ALJ decisions. A party may withdraw its objections to the Assistant Secretary's findings and/or preliminary order at any time before the findings and/or preliminary order become final by filing a written withdrawal with the ALJ. Similarly, if a case is on review with the ARB, a party may withdraw its petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, depending on where the case is pending, will determine whether to approve the withdrawal of the objections or the petition for review. Paragraph (c) clarifies that if the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or preliminary order, and there are no other pending objections, the Assistant Secretary's findings and/or preliminary order will become the final order of the Secretary. Likewise, if the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. Finally, paragraph (c) provides that if objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d).

    Paragraph (d)(1) states that a case may be settled at the investigative stage if the Assistant Secretary, the complainant, and the respondent agree. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties. Paragraph (d)(2) permits a case to be settled if the participating parties agree and the ALJ before whom the case is pending approves at any time after the filing of objections to the Assistant Secretary's findings and/or preliminary order. Similarly, if the case is before the ARB, the ARB may approve a settlement between the participating parties.

    Under paragraph (e), settlements approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced pursuant to 49 U.S.C. 31105(e), as incorporated by 46 U.S.C. 2114(b).

    Section 1986.112 Judicial Review

    This section describes the statutory provisions for judicial review of decisions of the Secretary. Paragraph (a) provides that within 60 days of the issuance of a final order under sections 1986.109 or 1986.110, a person adversely affected or aggrieved by such order may file a petition for review of the order in the court of appeals of the United States for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. Paragraph (b) states that a final order will not be subject to judicial review in any criminal or other civil proceeding. Paragraph (c) requires that in cases where judicial review is sought the ARB or ALJ, as the case may be, must submit the record of proceedings to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.

    Section 1986.113 Judicial Enforcement

    This section provides that the Secretary may obtain judicial enforcement of orders, including orders approving settlement agreements, by filing a civil action seeking such enforcement in the United States district court for the district in which the violation occurred.

    Section 1986.114 District Court Jurisdiction of Retaliation Complaints Under SPA

    This section allows a complainant to bring an action in district court for de novo review of the allegations contained in the complaint filed with OSHA if there has been no final decision of the Secretary and 210 days have passed since the filing of that complaint and the delay was not due to the complainant's bad faith. This section reflects the Secretary's position that it would not be reasonable to construe the statute to permit a complainant to initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the administrative complaint. In the Secretary's view, the purpose of the “kick out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals.

    Paragraph (b) of this section requires a complainant to provide a file-stamped copy of his or her complaint within seven days after filing a complaint in district court to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. This provision is necessary to notify the Agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

    Section 1986.115 Special Circumstances; Waiver of Rules

    This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and three-day's notice to the parties, waive any rule or issue such orders as justice or the administration of SPA's whistleblower provision requires.

    V. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation complaint, Section 1986.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The assigned OMB control number is 1218-0236.

    VI. Administrative Procedure Act

    The notice and comment rulemaking procedures of 5 U.S.C.553, a provision of the Administrative Procedure Act (APA), do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Part 1986 sets forth interpretive rules and rules of agency procedure and practice within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required. Although Part 1986 was not subject to the notice and comment procedures of the APA, the Assistant Secretary sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons.

    Furthermore, because this rule is procedural and interpretative rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since February 6, 2013.

    VII. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 1995; Executive Order 13132

    The Department has concluded that this rule is not a “significant regulatory action” within the meaning of section 3(f)(4) of Executive Order 12866, as reaffirmed by Executive Order 13563, because it is not likely to: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared. Because no notice of proposed rulemaking was published, no statement is required under section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule 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” and therefore is not subject to Executive Order 13132 (Federalism).

    VIII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of section 553 of the APA do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9; also found at: https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and, therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA.

    List of Subjects in 29 CFR Part 1986

    Administrative practice and procedure, Employment, Investigations, Marine safety, Reporting and recordkeeping requirements, Safety, Seamen, Transportation, Whistleblowing.

    Authority and Signature

    This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health.

    Signed at Washington, DC, on September 1, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Accordingly, for the reasons set out in the preamble, 29 CFR part 1986 is revised to read as follows: PART 1986—PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION ACT (SPA), AS AMENDED Subpart A—Complaints, Investigations, Findings and Preliminary Orders 1986.100 Purpose and scope. 1986.101 Definitions. 1986.102 Obligations and prohibited acts. 1986.103 Filing of retaliation complaints. 1986.104 Investigation. 1986.105 Issuance of findings and preliminary orders. Subpart B—Litigation 1986.106 Objections to the findings and the preliminary order and request for a hearing. 1986.107 Hearings. 1986.108 Role of Federal agencies. 1986.109 Decisions and orders of the administrative law judge. 1986.110 Decisions and orders of the Administrative Review Board. Subpart C—Miscellaneous Provisions 1986.111 Withdrawal of SPA complaints, findings, objections, and petitions for review; settlement. 1986.112 Judicial review. 1986.113 Judicial enforcement. 1986.114 District court jurisdiction of retaliation complaints under SPA. 1986.115 Special circumstances; waiver of rules. Authority:

    46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

    Subpart A—Complaints, Investigations, Findings, and Preliminary Orders
    § 1986.100 Purpose and scope.

    (a) This part sets forth the procedures for, and interpretations of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended, which protects a seaman from retaliation because the seaman has engaged in protected activity pertaining to compliance with maritime safety laws and accompanying regulations. SPA incorporates the procedures, requirements, and rights described in the whistleblower provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.

    (b) This part establishes procedures pursuant to the statutory provisions set forth above for the expeditious handling of retaliation complaints filed by seamen or persons acting on their behalf. These rules, together with those rules codified at 29 CFR part 18, set forth the procedures for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings, litigation before administrative law judges (ALJs), post-hearing administrative review, withdrawals and settlements, and judicial review and enforcement. In addition, the rules in this part provide the Secretary's interpretations on certain statutory issues.

    § 1986.101 Definitions.

    As used in this part:

    (a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended.

    (b) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under the Act.

    (c) Business days means days other than Saturdays, Sundays, and Federal holidays.

    (d) Citizen of the United States means an individual who is a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)); a corporation incorporated under the laws of the United States or a State; a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States or whose principal place of business or base of operations is in a State; or a governmental entity of the Federal Government of the United States, of a State, or of a political subdivision of a State. The controlling interest in a corporation is owned by citizens of the United States if a majority of the stockholders are citizens of the United States.

    (e) Complainant means the seaman who filed a SPA whistleblower complaint or on whose behalf a complaint was filed.

    (f) Cooperated means any assistance or participation with an investigation, at any stage of the investigation, and regardless of the outcome of the investigation.

    (g) Maritime safety law or regulation includes any statute or regulation regarding health or safety that applies to any person or equipment on a vessel.

    (h) Notify or notified includes any oral or written communications.

    (i) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.

    (j) Person means one or more individuals or other entities, including but not limited to corporations, companies, associations, firms, partnerships, societies, and joint stock companies.

    (k) Report or reported means any oral or written communications.

    (l) Respondent means the person alleged to have violated 46 U.S.C. 2114.

    (m) Seaman means any individual engaged or employed in any capacity on board a U.S.-flag vessel or any other vessel owned by a citizen of the United States, except members of the Armed Forces. The term includes an individual formerly performing the work described above or an applicant for such work.

    (n) Secretary means the Secretary of Labor or persons to whom authority under the Act has been delegated.

    (o) State means a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.

    (p) Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

    (q) Vessel owner includes all of the agents of the owner, including the vessel's master.

    (r) Any future amendments to SPA that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.

    § 1986.102 Obligations and prohibited acts.

    (a) A person may not retaliate against any seaman because the seaman:

    (1) In good faith reported or was about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believed that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;

    (2) Refused to perform duties ordered by the seaman's employer because the seaman had a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;

    (3) Testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;

    (4) Notified, or attempted to notify, the vessel owner or the Secretary of the department in which the Coast Guard was operating of a work-related personal injury or work-related illness of a seaman;

    (5) Cooperated with a safety investigation by the Secretary of the department in which the Coast Guard was operating or the National Transportation Safety Board;

    (6) Furnished information to the Secretary of the department in which the Coast Guard was operating, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or

    (7) Accurately reported hours of duty under part A of subtitle II of title 46 of the United States Code.

    (b) Retaliation means any discrimination against a seaman including, but not limited to, discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman.

    (c) For purposes of paragraph (a)(2) of this section, the circumstances causing a seaman's apprehension of serious injury must be of such a nature that a reasonable person, under similar circumstances, would conclude that there was a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer. To qualify for protection based on activity described in paragraph (a)(2) of this section, the seaman must have sought from the employer, and been unable to obtain, correction of the unsafe condition. Any seaman who requested such a correction shall be protected against retaliation because of the request.

    § 1986.103 Filing of retaliation complaints.

    (a) Who may file. A seaman who believes that he or she has been retaliated against by a person in violation of SPA may file, or have filed by any person on the seaman's behalf, a complaint alleging such retaliation.

    (b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If a seaman is unable to file a complaint in English, OSHA will accept the complaint in any other language.

    (c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the seaman resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov

    (d) Time for filing. Not later than 180 days after an alleged violation occurs, a seaman who believes that he or she has been retaliated against in violation of SPA may file, or have filed by any person on his or her behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law.

    (e) Relationship to section 11(c) complaints. A complaint filed under SPA alleging facts that would also constitute a violation of section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a complaint under both SPA and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would also constitute a violation of SPA will be deemed to be a complaint filed under both SPA and section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed.

    § 1986.104 Investigation.

    (a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint by providing the respondent with a copy of the complaint, redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent of the respondent's rights under paragraphs (b) and (f) of this section. The Assistant Secretary will provide a copy of the unredacted complaint to the complainant (or complainant's legal counsel, if complainant is represented by counsel) and to the U.S. Coast Guard.

    (b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with the Assistant Secretary to present its position.

    (c) Throughout the investigation, the Agency will provide to the complainant (or the complainant's legal counsel if complainant is represented by counsel) a copy of all of respondent's submissions to the Agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the Agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Agency will also provide the complainant with an opportunity to respond to such submissions.

    (d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title.

    (e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint.

    (2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:

    (i) The seaman engaged in a protected activity;

    (ii) The respondent knew or suspected that the seaman engaged in the protected activity;

    (iii) The seaman suffered an adverse action; and

    (iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

    (3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the seaman engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complainant shows that the adverse action took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel if complainant is represented by counsel) will be so notified and the investigation will not commence.

    (4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted or will be discontinued if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.

    (5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in paragraph (e)(4) of this section, the Assistant Secretary will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.

    (f) Prior to the issuance of findings and a preliminary order as provided for in § 1986.105, if the Assistant Secretary has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated the Act and that preliminary reinstatement is warranted, the Assistant Secretary will again contact the respondent (or the respondent's legal counsel, if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials to the complainant, the Agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigators, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of the Assistant Secretary's notification pursuant to this paragraph, or as soon thereafter as the Assistant Secretary and the respondent can agree, if the interests of justice so require.

    § 1986.105 Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings as to whether there is reasonable cause to believe that the respondent retaliated against the complainant in violation of SPA.

    (1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief. Such order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant has incurred). Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order may also require the respondent to pay punitive damages of up to $250,000.

    (2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.

    (b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or the order and to request a hearing. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order.

    (c) The findings and the preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and request for a hearing have been timely filed as provided at § 1986.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and the preliminary order, regardless of any objections to the findings and/or the order.

    Subpart B—Litigation
    § 1986.106 Objections to the findings and the preliminary order and request for a hearing.

    (a) Any party who desires review, including judicial review, must file any objections and a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1986.105(c). The objections and request for a hearing must be in writing and state whether the objections are to the findings and/or the preliminary order. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record, and the OSHA official who issued the findings.

    (b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only on the basis of exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or preliminary order will become the final decision of the Secretary, not subject to judicial review.

    § 1986.107 Hearings.

    (a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title.

    (b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. ALJs have broad discretion to limit discovery in order to expedite the hearing.

    (c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated, and a single hearing will be conducted.

    (d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

    § 1986.108 Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every proceeding. In any case in which the respondent objects to the findings or the preliminary order, the Assistant Secretary ordinarily will be the prosecuting party. In any other cases, at the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or participate as amicus curiae at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.

    (2) If the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1) of this section, he or she may, upon written notice to the ALJ or the Administrative Review Board (ARB), as the case may be, and the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party and the ALJ or the ARB, as the case may be, will issue appropriate orders to regulate the course of future proceedings.

    (3) Copies of documents in all cases shall be sent to all parties, or if they are represented by counsel, to the latter. In cases in which the Assistant Secretary is a party, copies of the documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary.

    (b) The U.S. Coast Guard, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at its discretion. At the request of the U.S. Coast Guard, copies of all documents in a case must be sent to that agency, whether or not that agency is participating in the proceeding.

    § 1986.109 Decisions and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.

    (b) If the complainant or the Assistant Secretary has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity.

    (c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1986.104(e) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant.

    (d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: affirmative action to abate the violation, reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant may have incurred); and payment of punitive damages up to $250,000. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

    (2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint.

    (e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB, U.S. Department of Labor. The ALJ decision will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review.

    § 1986.110 Decisions and orders of the Administrative Review Board.

    (a) The Assistant Secretary or any other party desiring to seek review, including judicial review, of a decision of the ALJ must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review and all briefs must be served on the Assistant Secretary and, in cases in which the Assistant Secretary is a party, on the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.

    (b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that any order of reinstatement will be effective while review is conducted by the ARB unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review.

    (c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision also will be served on the Assistant Secretary and on the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor, even if the Assistant Secretary is not a party.

    (d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees the complainant may have incurred); and payment of punitive damages up to $250,000. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

    (e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint.

    Subpart C—Miscellaneous Provisions
    § 1986.111 Withdrawal of SPA complaints, findings, objections, and petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying the Assistant Secretary, orally or in writing, of his or her withdrawal. The Assistant Secretary then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. The Assistant Secretary will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.

    (b) The Assistant Secretary may withdraw the findings and/or a preliminary order at any time before the expiration of the 30-day objection period described in § 1986.106, provided that no objection has been filed yet, and substitute new findings and/or a new preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.

    (c) At any time before the Assistant Secretary's findings and/or preliminary order become final, a party may withdraw objections to the Assistant Secretary's findings and/or preliminary order by filing a written withdrawal with the ALJ. If a case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.

    (d)(1) Investigative settlements. At any time after the filing of a SPA complaint and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates the Assistant Secretary's consent and achieves the consent of all three parties.

    (2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ or by the ARB, if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB as the case may be.

    (e) Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in a United States district court pursuant to 49 U.S.C. 31105(e), as incorporated by 46 U.S.C. 2114(b).

    § 1986.112 Judicial review.

    (a) Within 60 days after the issuance of a final order under §§ 1986.109 and 1986.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the court of appeals of the United States for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.

    (b) A final order is not subject to judicial review in any criminal or other civil proceeding.

    (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB, or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.

    § 1986.113 Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of reinstatement or a final order, including one approving a settlement agreement issued under SPA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred.

    § 1986.114 District court jurisdiction of retaliation complaints under SPA.

    (a) If there is no final order of the Secretary, 210 days have passed since the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy. The action shall, at the request of either party to such action, be tried by the court with a jury.

    (b) Within seven days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. A copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.

    § 1986.115 Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of the rules in this part, or for good cause shown, the ALJ or the ARB on review may, upon application, after three days notice to all parties, waive any rule or issue such orders as justice or the administration of SPA requires.

    [FR Doc. 2016-21758 Filed 9-14-16; 8:45 am] BILLING CODE 4510-26-P
    PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4022 and 4044 Allocation of Assets in Single-Employer Plans; Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits AGENCY:

    Pension Benefit Guaranty Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends the Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans to prescribe interest assumptions under the benefit payments regulation for valuation dates in October 2016 and interest assumptions under the asset allocation regulation for valuation dates in the fourth quarter of 2016. The interest assumptions are used for valuing and paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.

    DATES:

    Effective October 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulations are also published on PBGC's Web site (http://www.pbgc.gov).

    The interest assumptions in Appendix B to Part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

    The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for October 2016 and updates the asset allocation interest assumptions for the fourth quarter (October through December) of 2016.

    The fourth quarter 2016 interest assumptions under the allocation regulation will be 1.98 percent for the first 20 years following the valuation date and 2.67 percent thereafter. In comparison with the interest assumptions in effect for the third quarter of 2016, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), a decrease of 0.52 percent in the select rate, and a decrease of 0.18 percent in the ultimate rate (the final rate).

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

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

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

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

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

    List of Subjects 29 CFR Part 4022

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

    29 CFR Part 4044

    Employee benefit plans, Pension insurance, Pensions.

    In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

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

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

    2. In appendix B to part 4022, Rate Set 276, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 276 10-1-16 11-1-16 0.50 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 276, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 276 10-1-16 11-1-16 0.50 4.00 4.00 4.00 7 8
    PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 4. The authority citation for part 4044 continues to read as follows: Authority:

    29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.

    5. In appendix B to part 4044, a new entry for October-December 2016, as set forth below, is added to the table. Appendix B to Part 4044—Interest Rates Used to Value Benefits For valuation dates occurring in the month— The values of i t are: i t for t = i t for t = i t for t = *         *         *         *         *         *         * October-December 2016 0.0198 1-20 0.0267 >20 N/A N/A

    Issued in Washington, DC, by

    Judith Starr, General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2016-22172 Filed 9-14-16; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0757] RIN 1625-AA08 Special Local Regulation; Atchafalaya River, Morgan City, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a special local regulation for all navigable waters, near mile marker 4.5 of the Morgan City Port Allen route to extend north and south 1000 feet of Russo's boat launch on the Atchafalaya River. The special local regulation is necessary to protect participants and spectators from the hazards associated with the Battle of the Basin power boat race. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Morgan City or a designated representative.

    DATES:

    This rule is effective from 10 a.m. on September 24, 2016 through 7 p.m. September 25, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0757 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, contact LTJG Vanessa Taylor, Marine Safety Unit Morgan City, U.S. Coast Guard; telephone 985-380-5334, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of the request until July 25, 2016. Completing the NPRM process would delay the immediate action needed to protect spectators and vessels from hazards associated with the boat races. It is impracticable to publish an NPRM because we must establish this special local regulation by September 24, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Providing 30 days notice for this occurrence would unnecessarily delay the effective date and would be impracticable based on the limited time frame, as well as be contrary to public interest because immediate action is needed to protect spectators from the potential safety hazards associated with the high speed boat races.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Morgan City (COTP) has determined that potential hazards associated with the combination of recreational and commercial vessels and a high speed boat racing event starting at 10 a.m. and lasting until 7 p.m. on September 24, 2016 and September 25, 2016 is a safety concern for anyone within this area. This rule is needed to help ensure the safety of persons and recreational boats during the event on the navigable waters within the special local regulation.

    IV. Discussion of the Rule

    This rule establishes a special local regulation that will be enforced from 10 a.m. until 7 p.m. on September 24, 2016 and September 25, 2016. The special local regulation will cover all navigable waters near mile marker 4.5 on the Morgan City Port Allen alternate route extending 1000 feet north and south from Russo's boat launch in Morgan City. The duration of the zone is intended to protect spectators, vessels, and the marine environment in these navigable waters while the speed races occur. No vessel or person will be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative.

    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, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and specific times of enforcement for the special local regulation. The limited duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the high speed boat races are being conducted. This special local regulation will be relatively small and enforced over two days. Under certain conditions, moreover, vessels may still transit through the special local regulation when permitted by the COTP or a designated representative.

    No vessel or person will be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting less than 2 days that will prohibit entry into or transit through the speed boat race course located at mile marker 4.5 of the Morgan City Port Allen Alternate route in Morgan City, LA. It 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 available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0757 to read as follows:
    § 165.T35-0757 Special local regulation; Atchafalaya River, Morgan City, LA.

    (a) Location. The following area is a special local regulation: All waters of the Atchafalaya River near mile marker 4.5 of the Morgan City Port Allen route to extend north and south 1000 feet from Russo's boat launch.

    (b) Enforcement period. This special local regulation will be enforced from 10 a.m. until 7 p.m. on September 24, 2016 and on September 25, 2016.

    (c) Regulations. (1) In accordance with the general regulations of this part, entry into this zone is prohibited unless specifically authorized by the COTP or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 13 and 16 or phone at 985-380-5373.

    (2) Persons and vessels permitted to deviate from this special local regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

    (d) Informational broadcasts. The COTP Morgan City or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the special local regulation as well as any changes in the dates and times of enforcement.

    Dated: September 6, 2016. J.H. Miller, Commander, U.S. Coast Guard, Acting Captain of the Port, Morgan City, Louisiana.
    [FR Doc. 2016-22200 Filed 9-14-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0791] RIN 1625-AA00 Safety Zone; Navy UNDET, Apra Outer Harbor, GU AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for navigable waters within a 700-yard radius on the surface and 1400-yard radius underwater of the Navy underwater detonation operations in the waters of Apra Outer Harbor, Guam. The Coast Guard believes this safety zone regulation is necessary to protect all persons and vessel that would otherwise transit or be within the affected areas from possible safety hazards associated with underwater detonation operations. Entry of vessels or persons into these zones is prohibited unless specifically authorized by the Captain of the Port Guam.

    DATES:

    This rule is effective without actual notice from September 15, 2016 until September 16, 2016. For the purposes of enforcement, actual notice will be used from September 13, 2016, until September 15, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0791 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

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

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

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

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Due to the late notice and inherent danger in underwater detonation exercises, delaying the effective period of this safety zone would be contrary to public interest.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Guam has determined that potential hazards associated with the U.S. Navy training exercise, which include detonation of underwater explosives on September 13-16, 2016, will be a safety concern for anyone within a 700-yard radius on the surface and 1400-yard radius underwater of the operation. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the exercise. Mariners and divers approaching too close to such exercises could potentially expose themselves to flying debris or other hazardous conditions.

    IV. Discussion of the Rule

    The safety zone will cover all navigable waters within 700-yards on the surface and 1400-yards underwater of vessels and machinery being used by the Navy. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the underwater detonation exercise. No vessel or person will be permitted to enter the safety zones without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of waters in Apra Outer Harbor for 8 hours. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting eight hours that will prohibit entry within 700-yards on the surface and 1400-yards underwater of vessels and machinery being used by Navy personnel. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

    PART 165—SAFETY ZONE; NAVY UNDET, APRA OUTER HARBOR, GU 1. The authority citation for part 165 continues to read as follows: Authority:

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

    2. Add § 165.T14-0791 to read as follows:
    § 165. T14-0791 Safety Zone; Navy UNDET, Apra Outer Harbor, GU.

    (a) Location. The following areas, within the Guam Captain of the Port (COTP) Zone (See 33 CFR 3.70-15), from the surface of the water to the ocean floor, are safety zones:

    Apra Outer Harbor, Guam September 13-16, 2016. All surface waters bounded by a circle with a 700-yard radius and all underwater areas bounded by a circle with a 1,400 yard radius centered at 13 degrees 27 minutes 42 seconds North Latitude and 144 degrees 38 minutes 30 seconds East Longitude, (NAD 1983).

    (b) Enforcement period. This section will be enforced from 8 a.m. through 4 p.m. daily from September 13, 2016 through September 16, 2016.

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

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

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

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

    Dated: August 17, 2016. James B. Pruett, Captain, U.S. Coast Guard, Captain of the Port, Guam.
    [FR Doc. 2016-22228 Filed 9-14-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Part 106 [Docket No. USCG-2015-0086] RIN 1625-AC23 Requirements for Vessels With Registry Endorsements or Foreign-Flagged Vessels That Perform Certain Aquaculture Support Operations AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is amending its regulations to implement Subsection 901(c) of the Coast Guard Authorization Act of 2010, which grants the Secretary of the U.S. Department of Transportation (DOT) the authority to issue a waiver allowing a documented vessel with only a registry endorsement or a foreign-flagged vessel to be used in certain aquaculture operations. Specifically, those operations include the treatment and/or protection of aquaculture fish from disease, parasitic infestation, or other threats to their health. The new part establishes the requirement for an owner or operator of a vessel that is issued a waiver allowing the vessel to conduct aquaculture support operations by the Secretary of DOT to notify the Coast Guard that the vessel owner or operator has been issued such a waiver. The part also establishes operational and geographic requirements for vessels that are issued such a waiver.

    DATES:

    This final rule is effective October 17, 2016.

    ADDRESSES:

    Documents mentioned in this preamble are part of docket USCG-2015-0086. To view public comments or documents mentioned in this preamble as being available in the docket, go to the Federal eRulemaking Portal at http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    For information about this document, call or email Mr. David Belliveau, Fishing Vessels Division (CG-CVC-3), U.S. Coast Guard; telephone 202-372-1247, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents for Preamble I. Abbreviations II. Regulatory History III. Basis and Purpose IV. Background V. Discussion of Comments and Changes VI. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Abbreviations BLS U.S. Bureau of Labor Statistics CBP U.S. Customs and Border Protection CFR Code of Federal Regulations CGAA Coast Guard Authorization Act of 2010 COD Certificate of Documentation DHS U.S. Department of Homeland Security DOT U.S. Department of Transportation E.O. Executive Order FR Federal Register MARAD Maritime Administration NAICS North American Industry Classification System NPRM Notice of proposed rulemaking OMB Office of Management and Budget Pub. L. Public Law RA Regulatory Analysis SNPRM Supplemental notice of proposed rulemaking U.S.C. United States Code II. Regulatory History

    On July 30, 2015, we published a notice of proposed rulemaking (NPRM) entitled “Requirements for Vessels With Registry Endorsements or Foreign-Flagged Vessels That Perform Certain Aquaculture Support Operations” in the Federal Register (FR) (80 FR 45491). We received one submission with three comments on the proposed rule. No public meeting was requested and none was held.

    III. Basis and Purpose

    Under Title 46 of United States Code (U.S.C.) 12102(d)(1), the Secretary of the U.S. Department of Transportation (DOT) may issue an “Aquaculture Support Operations Waiver” to allow a documented vessel with only a registry endorsement or a foreign-flagged vessel to be used in operations that treat aquaculture fish for or protect aquaculture fish from disease, parasitic infestation, or other threats to their health if the Secretary finds, after publishing a notice in the Federal Register, that a suitable vessel of the United States is not available to perform those services.1

    1 These services are generally performed by “wellboats” (commonly understood as fishing and housing facility vessels) that pump fish out of their pens and into the vessels' fish holds. The fish hold is full of sea water and while the fish are inside the fish hold, a metered dose of de-lousing chemical is added to the fish hold. The water is then circulated vigorously to ensure complete mixing of the de-lousing agent. Upon completion of the treatment cycle, the fish are returned to their pens.

    In this final rule, the Coast Guard is amending 46 CFR subchapter I—Cargo and Miscellaneous Vessels, by adding a new part 106 that establishes the requirement for an owner or operator of a vessel that is issued an Aquaculture Support Operations Waiver by the Maritime Administration (MARAD),2 for the purpose of conducting certain aquaculture support operations, to notify the Coast Guard that such a waiver has been issued. This new part also establishes operational and geographic requirements for a vessel that is issued such a waiver.

    2 On October 14, 2014, the Secretary of Transportation delegated the authority to administer paragraph 901(c)(1) of the CGAA to the Maritime Administrator, MARAD.

    IV. Background

    On May 27, 2010, U.S. Customs and Border Protection (CBP) ruled that aquaculture activities constitute “engag[ing] in the fisheries,” and is thus within the meaning of 46 U.S.C. 108, for which a vessel must possess a Certificate of Documentation (COD) endorsed pursuant to 46 U.S.C. 12113 (see CBP ruling HQ H105735).3 Title 46 U.S.C. 12113 limits employment in the fisheries to a vessel issued a COD with a fishery endorsement. This effectively disqualifies any foreign-flagged vessel from carrying out these activities.

    3 This ruling is available online from CBP by going to http://rulings.cbp.gov/, entering “HQ H105735” in the “Search” box and clicking “Go”.

    Section 901 of the Coast Guard Authorization Act of 2010 (CGAA) (Pub. L. 111-281) amended 46 U.S.C. 12102 by adding subsection (d). Pursuant to 46 U.S.C. 12102(d)(1), the Secretary of DOT may issue an Aquaculture Support Operations Waiver allowing a documented vessel with a registry endorsement or a foreign-flagged vessel to be used in operations that treat or protect aquaculture fish from disease, parasitic infestation, or other threats to their health if the Secretary finds, after publishing a notice in the Federal Register, that a suitable vessel of the United States is not available that could perform those services.

    This rule is necessary to implement the Coast Guard's rulemaking responsibility as prescribed by 901(c)(2) of the CGAA. In that paragraph, Congress directed the Secretary of the U.S. Department of Homeland Security (DHS), the department under which the Coast Guard operates, to promulgate regulations that are necessary and appropriate to implement subsection 901(c). It also authorizes the Secretary of DHS to “grant interim permits pending the issuance of such regulations upon receipt of applications containing the required information.” Through this rule, we are establishing the requirement that an owner or operator of a vessel who is issued an Aquaculture Support Operations Waiver by MARAD for the purpose of conducting certain aquaculture support operations must notify the Coast Guard that such a waiver has been issued. This rule also establishes operational and geographic requirements for vessels that are issued such waivers.

    V. Discussion of Comments and Changes

    One commenter submitted three comments for our consideration. These comments are available for viewing in the public docket for this rulemaking, where indicated under ADDRESSES. Below, we summarize these comments and our responses to them.

    A. The commenter states that instead of putting the notification burden on the owner/operator, the responsibility to notify the Coast Guard that an Aquaculture Support Operations Waiver has been issued for a particular vessel should rest with the DOT. The commenter states that having DOT notify the Coast Guard that DOT has issued an Aquaculture Support Operations Waiver is more efficient and practical than having the owner/operator notify the Coast Guard and that doing so would also reduce the risk of communication error or delay.

    We do not agree. First, it is important to note that the statute does not require MARAD to notify the Coast Guard that it has issued an Aquaculture Support Operations Waiver for an otherwise unqualified vessel to conduct aquaculture support operations in U.S. waters. Second, while the Coast Guard may expect MARAD to provide notification to the Coast Guard that it has issued an Aquaculture Support Operations Waiver, we cannot control the timing of MARAD's notification to the Coast Guard.

    It also benefits the owner/operator of a vessel to have full control over when to notify the Coast Guard that he or she has received an Aquaculture Support Operations Waiver because it facilitates faster notification and eliminates the potential for administrative delay. Accordingly, if an owner/operator wants to be sure that the Coast Guard is notified of his or her vessel's Aquaculture Support Operations Waiver before conducting aquaculture support operations in U.S. waters, it benefits the owner/operator to notify the Coast Guard because it removes the risk of administrative delay that could result in the Coast Guard not receiving notification before the vessel engages in aquaculture support operations.

    Prompt notification is necessary to ensure that the Coast Guard does not expend resources unnecessarily by deploying assets to conduct a law enforcement boarding to determine the eligibility of a vessel with only a registry endorsement or a foreign-flagged vessel to engage in aquaculture support operations in U.S. waters.

    As discussed earlier, CBP ruled that aquaculture support activities constitute engaging in the fisheries, for which a vessel must possess a COD with a fishery endorsement. This effectively disqualifies any U.S. vessel without a “fisheries” endorsement or any foreign-flagged vessel from carrying out these activities without an Aquaculture Support Operations Waiver issued by MARAD. The notification requirement, therefore, is necessary for the Coast Guard's maritime domain awareness which, in turn, will help streamline the Coast Guard's law enforcement activities.

    Additionally, placing the notification requirement on the owner/operator (the waiver-applicant), is not unprecedented. The “Small Vessel Waiver Program” is a program administered by MARAD. Under that program, MARAD has the authority to grant waivers of the U.S. build requirements for foreign-built vessels to operate in the United States as commercial passenger vessels. Under the Small Vessel Waiver Program, at the time that MARAD issues a waiver to the applicant, MARAD informs the applicant of the need to notify the Coast Guard's National Vessel Documentation Center that a waiver has been issued which, in turn, makes the vessel eligible to receive a coastwise trade endorsement on the vessel's Certificate of Documentation. 46 CFR 388.6(a)(2) (MARAD requirement); 46 CFR 67.7 (Coast Guard COD requirement). Placing the responsibility for notifying the Coast Guard that an owner/operator has received a waiver from MARAD to engage in aquaculture support operations is consistent with the notification responsibility provided under an existing, similarly administered MARAD program.

    B. The commenter next states that the requirement to limit the vessel's aquaculture support operations to the geographic area identified in DOT's Aquaculture Support Operations Waiver lacks rationale and imposes a restriction not contemplated in the statute. We agree that the statute does not impose any restrictions regarding the geographic area within which a vessel may conduct aquaculture support operations. However, a vessel's geographic operational area is a factor in MARAD's analysis of whether there are any U.S. vessels available to perform those operations. Therefore, the requirement to conduct aquaculture support operations within the geographic area identified in MARAD's Aquaculture Support Operations Waiver, serves to uphold the terms of the waiver, which is issued, in large part, based upon the representations (including operational geographic representations 4 ) of the owner/operator.

    4 Since 2010, in every application for an interim permit that the Coast Guard has received [eight as of November 2015], the applicant has identified, in general terms, the geographic area in which the vessel would be conducting aquaculture support operations. This same geographic area of operations information was, in turn, also provided to MARAD for the purpose of aiding MARAD in its U.S. vessel availability analysis.

    In the interest of providing flexibility consistent with the statute and the geographical limits of the Aquaculture Support Operations Waiver, however, the Coast Guard will accept waivers for operations in multiple locations. Accordingly, if an owner/operator anticipates that the vessel's aquaculture support operations will occur in several geographic locations, then the owner/operator can list those locations in its Aquaculture Support Operations Waiver application to MARAD to aid MARAD in its analysis of whether there are any suitable U.S.-flagged vessels available to conduct aquaculture support operations in those identified areas. The Coast Guard has revised § 106.120(a)(2) to reflect the possibility that a waiver may allow operations in more than one location. Because this change is a logical outgrowth of the NPRM, a supplemental notice of proposed rulemaking (SNPRM) is unnecessary. Further opportunity for public comment would only serve to delay completion of this rulemaking. Thus, we find good cause under 5 U.S.C. 553(b)(B) to proceed with publication of this final rule without an SNPRM.

    C. Lastly, the commenter inquires whether the regulations in this rulemaking represent the completion of the Coast Guard's rulemaking obligations under subsection 901(c) of the CGAA. At this time, the Coast Guard does not expect to engage in further rulemaking to implement subsection 901(c).However, as prescribed in paragraph 901(c)(1), the Secretary of DOT was provided the discretionary authority to issue waivers allowing documented vessels with registry endorsements or foreign-flagged vessels to be used in aquaculture support operations when suitable vessels of the United States are not available that could perform those services. As noted above, on October 14, 2014, the Secretary of DOT delegated the authority to administer paragraph 901(c)(1) of the CGAA to the Maritime Administrator. Accordingly, we defer to MARAD on the process associated with the application for, and the issuance of, an Aquaculture Support Operations Waiver.

    D. After publication of the NPRM, we determined that the wording of the “Penalties” section of the proposed regulation, § 106.125, raised an unintended ambiguity by providing that a vessel owner, operator, or charterer not operating a vessel as required in this part is subject to penalty under 46 U.S.C. 12151. We believe this wording may be incorrectly interpreted to mean that there can only be a violation if the vessel is not operating. We are, therefore, making a minor change to § 106.125 in this final rule to remove that unintended ambiguity by amending the section to provide that violation of this part is subject to the civil penalties set forth under 46 U.S.C. 12151. In addition to removing the unintended ambiguity, this wording is consistent with 46 U.S.C. 12151 and is also consistent with other Coast Guard regulations. See, for example, 46 CFR 4.06-70 and 46 CFR 16.115. Because this change is a logical outgrowth of the NPRM, an SNPRM is unnecessary. In addition, an SNPRM is unnecessary because the change is a non-substantive clarification. Further opportunity for public comment would only serve to delay completion of this rulemaking. Thus, we find good cause under 5 U.S.C. 553(b)(B) to proceed with publication of this final rule without an SNPRM.

    Additionally, in light of the Secretary of Transportation's delegation to MARAD to administer the Aquaculture Support Operations Waiver program, we are changing the nomenclature from “DOT” to “MARAD” in § 106.115 and § 106.120 to more accurately reflect the issuing authority for aquaculture waivers. Because this change is a logical outgrowth of the proposed rule, an SNPRM is unnecessary. For the same reasons discussed earlier, we find good cause under 5 U.S.C. 553(b)(B) to proceed with publication of this final rule without an SNPRM.

    VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.

    A. Regulatory Planning and Review

    Executive Orders 12866, Regulatory Planning and Review, and 13563, Improving Regulation and Regulatory Review, 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 subsection 3(f) of E.O. 12866 as supplemented by E.O. 13563. The Office of Management and Budget has not reviewed it under E.O. 12866. We developed an analysis of the costs and benefits of the rule to ascertain its probable impacts on industry. A final Regulatory Analysis (RA) follows.

    This RA provides an evaluation of the economic impacts associated with this final rule. The table that follows provides a summary of the rule's costs and benefits.

    Table 1—Summary of the Rule's Impacts  Category Summary Applicability Owners or operators of vessels that are issued an Aquaculture Support Operations Waiver allowing a documented vessel with only a registry endorsement or a foreign-flagged vessel to be used in operations that treat aquaculture fish. Affected Population 2 vessels. Costs to Industry and Government ($, 7% discount rate) 10-year: $819.65.
  • Annualized: $116.70.
  • Unquantified Benefits Allows the Coast Guard to readily identify vessels with waivers to perform certain aquaculture support operations.

    Wellboats (or live fish carriers) were especially affected by CBP's ruling (HQ H105735) that aquaculture activities constitute “engaging in the fisheries” and are thus within the meaning of 46 U.S.C. 108, for which a vessel must possess a Certificate of Documentation endorsed pursuant to 46 U.S.C. 12113. Wellboats are highly specialized vessels that are used to treat farmed salmon. The wellboats are designed to service large inventories of farmed salmon during the salt-water grow-out phase and are specially equipped to protect the fish onboard the vessel. Direct treatment aboard a wellboat is currently the most efficient and effective method to treat salmon. If left untreated, salmon inventories can be destroyed and the industry can lose revenue. There are only a few coastwise qualified wellboats suitable and available for this work. This is why a considered Aquaculture Support Operations Waiver process that would allow inclusion of foreign-flagged wellboats is necessary.

    Through this rulemaking, the Coast Guard is amending its regulations to implement subsection 901(c) of the CGAA. Under that provision, the Secretary of DOT has the authority to issue a waiver allowing a documented vessel with only a registry endorsement or a foreign-flagged vessel to be used in certain aquaculture support operations that treat or protect aquaculture fish from disease, parasitic infestation, or other threats to their health if, after posting a notice in the Federal Register, the Secretary of DOT determines that no suitable U.S.-flagged vessel is available. Under this rule, a vessel owner or operator of a vessel who has been issued a waiver by MARAD to perform aquaculture support operations will be required to notify and provide a copy of the waiver to the Coast Guard. Through this rulemaking, we are also establishing operational and geographic requirements for a vessel that is issued a waiver by MARAD to perform aquaculture support operations. For more information on these requirements, refer to § 106.120 Operational and Geographic Requirements.

    No changes were made in the RA of this final rule as a result of public comments. The only change in this final rule's RA is that we updated the labor rates to reflect the most recent available wage data.

    Affected Population

    The Coast Guard determined the affected population based on the number of Aquaculture Support Operations Waiver requests from vessel owners and operators. Since the 2010 CBP ruling, only one entity has applied for waivers for foreign-flagged wellboats to treat salmon. This U.S. entity operates two foreign-flagged wellboats, and we anticipate that this entity will continue to apply for Aquaculture Support Operations Waivers in the future. Therefore, this rule is expected to affect one U.S. entity that operates two vessels. Depending on the growth of the salmon aquaculture industry, there is the potential for the number of affected vessels to increase in the future. However, current trends indicate no increase in growth in the salmon aquaculture industry. Therefore, we did not consider, in this analysis, an annual increase in the number of Aquaculture Support Operations Waivers that would be submitted to the Coast Guard.

    Costs

    In this rule, owners or operators of foreign-flagged vessels, which are issued waivers by MARAD to conduct certain aquaculture support operations, must notify the Coast Guard that such waivers have been issued. The costs of this rule include the costs to the industry to provide copies of the Aquaculture Support Operations Waivers and the costs to the Government to process the information. Aquaculture Support Operations Waivers will be issued on an annual basis per DOT requirements. Owners or operators of the vessels are required to provide copies of these waivers to the Coast Guard annually. Waivers are issued individually for each vessel involved in aquaculture support operations, and therefore, costs are estimated on a per vessel basis.

    Industry Costs

    The Coast Guard estimates it will take 0.5 hours for a legal secretary to copy and send each Aquaculture Support Operations Waiver to the Coast Guard, via postal mail and electronic mail. The wage rate for a legal assistant was obtained from the U.S. Bureau of Labor Statistics (BLS), using Occupational Series 23-2011, Paralegals and Legal Assistants (May 2014). BLS reports that the mean hourly rate for a legal assistant is $24.92.5 To account for employee benefits, we use the load factor of 1.43, which we calculated from June 2014 BLS data.6 The loaded wage rate for a legal assistant is estimated at $35.70 per hour ($24.92 wage rate × 1.43 load factor). The expected cost to industry to provide copies of the Aquaculture Support Operations Waiver is $35.70 ($35.70 × 0.5 hours × 2 vessels). The total 10-year undiscounted industry cost of this final rule is $357. Table 2 shows the total 10-year cost of two affected vessels to be $250.74 and annualized cost of $35.70, both discounted at 7 percent.

    5 Mean wage, http://www.bls.gov/oes/2014/may/oes232011.htm.

    6 Employer Costs for Employee Compensation news release text provides information on the employer compensation, and can be found at http://www.bls.gov/schedule/archives/ecec_nr.htm.

    Table 2—Total 10-Year Cost to Industry Year Undiscounted
  • costs
  • Discount rate 7% 3%
    1 $35.70 $33.36 $34.66 2 35.70 31.18 33.65 3 35.70 29.14 32.67 4 35.70 27.24 31.72 5 35.70 25.45 30.80 6 35.70 23.79 29.90 7 35.70 22.23 29.03 8 35.70 20.78 28.18 9 35.70 19.42 27.36 10 35.70 18.15 26.56 Total 357.00 250.74 304.53 Annualized 35.70 35.70 Note: Total may not add due to rounding.
    Government Costs

    The Coast Guard estimates it will take 0.5 hours per vessel for Coast Guard personnel at the GS-13 level to record the information from the Aquaculture Support Operations Waivers. The fully loaded wage rate for a GS-13 is $81, per Commandant Instruction 7310.1Q.7 The total cost for the Coast Guard is $81 [(0.5 hours × $81) × 2 vessels]. The total 10-year undiscounted Government cost of this final rule is $810. Table 3 shows the total Government 10-year discounted cost at $568.91, and the annualized cost at $81, both discounted at 7 percent.

    7 See http://www.uscg.mil/directives/ci/7000-7999/CI_7310_1Q.pdf.

    Table 3—Total Government Cost Year Undiscounted
  • costs
  • Discount rate 7% 3%
    1 $81.00 $75.70 $78.64 2 81.00 70.75 76.35 3 81.00 66.12 74.13 4 81.00 61.79 71.97 5 81.00 57.75 69.87 6 81.00 53.97 67.84 7 81.00 50.44 65.86 8 81.00 47.14 63.94 9 81.00 44.06 62.08 10 81.00 41.18 60.27 Total 810.00 568.91 690.95 Annualized 81.00 81.00 Note: Total may not add due to rounding.

    Table 4 displays the total costs on an undiscounted basis, and discounted at 7 percent and 3 percent interest rates, respectively. The total 10-year undiscounted cost of this rule is $1,167. The total 10-year (industry and government) discounted cost of this final rule is $819.65 and the annualized cost is $116.70, both discounted at 7 percent.

    Table 4—Total Costs of the Rule Year Total undiscounted costs Total, discounted 7% 3% 1 $116.70 $109.07 $113.30 2 116.70 101.93 110.00 3 116.70 95.26 106.80 4 116.70 89.03 103.69 5 116.70 83.21 100.67 6 116.70 77.76 97.73 7 116.70 72.67 94.89 8 116.70 67.92 92.12 9 116.70 63.48 89.44 10 116.70 59.32 86.84 Total 1,167.00 819.65 995.47 Annualized 116.70 116.70 Note: Total may not add due to rounding. Benefits

    This rule does not provide any quantitative benefits. However, it does have a qualitative benefit. It provides the Coast Guard with greater maritime domain awareness through the requirement that an owner or operator of a vessel who has received an Aquaculture Support Operations Waiver from MARAD must submit a copy of the waiver to the Coast Guard. The requirement to submit a copy of the waiver to the Coast Guard will ensure that appropriate Coast Guard officials are aware that foreign-flagged vessels or vessels with only registry endorsements are conducting aquaculture support activities in U.S waters pursuant to an Aquaculture Support Operations Waiver issued by DOT under the authority of 46 U.S.C. 12102(d)(1).

    B. Small Entities

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.

    There is one U.S. entity that operates two foreign-flagged vessels that would be affected by this rulemaking at this time. This entity is neither a not-for-profit nor a governmental organization. The North American Industry Classification System (NAICS) for this entity is 424460, Fish and Seafood Merchant Wholesalers. An entity with this NAICS code is considered a small entity if it has less than 100 employees. Using the small entity definition for the NAICS code, we determined the entity is classified as a small entity, since this entity has 40 employees. Table 5 shows information on the U.S. entity classified as a small entity by NAICS code, and the small entity standard size established by the Small Business Administration.

    Table 5—NAICS Code and Small Entities Size Standards NAICS code Description Small business size standard 424460 Fish and Seafood Merchant Wholesalers Less than 100 employees.

    We reviewed business revenue data provided by a publicly available source 8 and found that this entity has annual revenue estimated at $4,800,000. Therefore, the expected burden on the company from this rulemaking is estimated at less than 0.001 percent of total annual revenue.

    8 MANTA (http://www.manta.com/) is an online business service directory and search engine that provides business revenue and size data.

    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

    C. Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. 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.

    Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

    D. Collection of Information

    This rule calls for a new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. This collection is explained below under Estimate of Total Annual Burden. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

    Under the provisions of the rule, an owner or operator of a vessel who is issued an Aquaculture Support Operations Waiver to conduct certain aquaculture support operations must notify the Coast Guard that such a waiver has been issued.

    Title: Requirements for Vessels that Perform Certain Aquaculture Support Operations.

    OMB Control Number: 1625-0126.

    Summary of the Collection of Information: An owner or operator of a vessel who is issued a waiver to conduct certain aquaculture support operations must notify the Coast Guard that such a waiver has been issued.

    Need for Information: This information is necessary to ensure that appropriate Coast Guard officials are aware that foreign-flagged vessels or documented vessels with only registry endorsements are conducting aquaculture support activities in U.S. waters pursuant to an Aquaculture Support Operations Waiver issued by DOT under the authority of 46 U.S.C. 12102(d)(1).

    Use of Information: The Coast Guard would use this information to enhance its maritime domain awareness and to streamline its law enforcement activities by ensuring that Coast Guard law enforcement officials are aware that foreign-flagged vessels or vessels with only a registry endorsement are conducting aquaculture support activities in U.S. waters pursuant to an Aquaculture Support Operations Waiver issued by DOT under the authority of 46 U.S.C. 12102(d)(1).

    Description of the Respondents: The respondents are owners or operators of vessels that are issued Aquaculture Support Operations Waivers by MARAD to conduct certain aquaculture support operations.

    Number of Respondents: The number of respondents is one per year.

    Frequency of Response: Aquaculture Support Operations Waivers are issued on an annual basis, so the frequency of response is one response per vessel, per year.

    Burden of Response: The estimated burden for each respondent is 0.5 hours per vessel to copy Aquaculture Support Operations Waivers and send information to the Coast Guard.

    Estimate of Total Annual Burden: There is currently one entity operating two vessels that have been issued Aquaculture Support Operations Waivers. The total annual burden would be 1 hour (0.5 hours × 2 vessels). Assuming this task is performed by a legal assistant at a loaded hourly rate of $35.70, the annual cost burden for this requirement is $35.70 ($35.70 loaded wage rate × 1 total entity hours).

    You are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB has not yet completed its review of this collection. Therefore, we are not making 46 CFR 106.115 effective until OMB completes action on our information collection request, at which time we will publish a Federal Register notice describing OMB's action and, if OMB grants approval, notifying you when that provision takes effect.

    E. Federalism

    A rule has implications for federalism under E.O. 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 as described in E.O. 13132. Our analysis is explained below.

    This rule implements subsection 901(c) of the CGAA. Subsection 901(c) amends section 12102 of chapter 121 of 46 U.S.C. by adding a waiver of certain Federal vessel documentation requirements for vessels performing aquaculture support operations. In paragraph 901(c)(2), Congress granted the Coast Guard, via delegation from the Secretary, exclusive authority to promulgate regulations that are necessary and appropriate for permitting nonqualified vessels to perform certain aquaculture support operations. Therefore, 46 CFR part 106 is established within a field foreclosed from State or local regulation. In light of the analysis above, this rule is consistent with the principles of federalism and preemption requirements in E.O. 13132.

    F. Unfunded Mandates Reform Act

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

    G. Taking of Private Property

    This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    I. Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

    J. Indian Tribal Governments

    This rule does not have tribal implications under E.O. 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.

    K. Energy Effects

    We have analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

    L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

    This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

    M. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969, 42 U.S.C. 4321-4370f, and have determined that it is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A final environmental analysis checklist supporting this determination is available in the docket. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs 34(a) and 34(d) of the Instruction. These paragraphs respectively pertain to promulgation of regulations that are editorial or procedural in nature, and those concerning vessel documentation requirements. This rule entails a minor regulatory change pertaining to vessels used in certain aquaculture operations and the Coast Guard's notification requirements for those vessels. Specifically, DOT has the authority to issue waivers allowing a documented vessel with a registry endorsement or a foreign-flagged vessel to be used in aquaculture support activities. The new part establishes the requirement for an owner or operator of a vessel that is issued a waiver to notify the Coast Guard. The part also establishes operational and geographic requirements for vessels that are issued such a waiver.

    List of Subjects in 46 CFR Part 106

    Aquaculture operations, Coastwise, Fishing vessels, Registry endorsement, Waiver.

    For the reasons discussed in the preamble, the Coast Guard amends 46 CFR by adding part 106 to read as follows: Title 46—Shipping PART 106—REQUIREMENTS FOR NONQUALIFIED VESSELS THAT PERFORM CERTAIN AQUACULTURE SUPPORT OPERATIONS Sec. 106.100 Purpose. 106.105 Applicability. 106.110 Definitions. 106.115 Notification requirements. 106.120 Operational and geographic requirements. 106.125 Penalties. Authority:

    Sec. 901(c)(2), Pub. L. 111-281, 124 Stat. 2905, Title IX; Department of Homeland Security Delegation No. 0170.1.

    § 106.100 Purpose.

    The regulations in this part implement 46 U.S.C. 12102(d).

    § 106.105 Applicability.

    The regulations in this part apply to a documented vessel with only a registry endorsement or a foreign-flagged vessel that has been issued an Aquaculture Support Operations Waiver by the Department of Transportation (DOT) under 46 U.S.C. 12102(d)(1), for the purpose of conducting aquaculture support operations.

    § 106.110 Definitions.

    Aquaculture support operations means activities that treat aquaculture fish for or protect aquaculture fish from disease, parasitic infestation, or other threats to their health.

    § 106.115 Notification requirements.

    (a) Prior to operating in U.S. waters, a vessel owner, operator, or charterer that has been issued an Aquaculture Support Operations Waiver by DOT's Maritime Administration (MARAD) to conduct aquaculture support operations must notify the Coast Guard in writing of its status. The notification must include the following information:

    (1) The vessel(s) name(s);

    (2) The vessel's official and/or International Maritime Organization number;

    (3) The geographic location within the waters of the United States where the vessel(s) will conduct treatment operations;

    (4) The period of time during which the Aquaculture Support Operations Waiver for the vessel(s) is approved including:

    (i) The start date (MM/DD/YYYY); and

    (ii) The expiration date (MM/DD/YYYY); and

    (5) A copy of the MARAD-issued Aquaculture Support Operations Waiver.

    (b) Written notification must be made to the Commandant (CG-CVC), ATTN: Office of Commercial Vessel Compliance, U.S. Coast Guard Stop 7501, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7501, or by email to [email protected]

    § 106.120 Operational and geographic requirements.

    (a) Vessels with a MARAD-issued Aquaculture Support Operations Waiver, issued under 46 U.S.C. 12102(d)(1), for the purpose of performing aquaculture support operations are subject to the following restrictions:

    (1) Commercial operations in U.S. waters other than operations that treat or protect aquaculture fish are prohibited;

    (2) While conducting aquaculture support operations, vessels will operate solely within the geographic location(s) identified in the waiver issued by MARAD; and

    (3) Vessels will not conduct aquaculture support operations beyond the period of time approved in the waiver issued by MARAD.

    (b) Vessels conducting aquaculture support operations will, at all times, maintain a copy of the waiver issued by MARAD on board the vessel as proof of its eligibility to conduct aquaculture support operations.

    § 106.125 Penalties.

    A person who violates any requirement prescribed by the regulations in this part is subject to penalty under 46 U.S.C. 12151.

    Dated: September 9, 2016. V.B. Gifford, Jr., Captain, U.S. Coast Guard, Director of Inspections and Compliance.
    [FR Doc. 2016-22097 Filed 9-14-16; 8:45 am] BILLING CODE 9110-04-P
    81 179 Thursday, September 15, 2016 Proposed Rules DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 7 [Docket ID OCC-2016-0022] RIN 1557-AD93 Industrial and Commercial Metals AGENCY:

    Office of the Comptroller of the Currency (OCC), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The OCC is proposing to prohibit national banks and federal savings associations from dealing and investing in industrial and commercial metal.

    DATES:

    You must submit comments by November 14, 2016.

    ADDRESSES:

    Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title “Industrial and Commercial Metals” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:

    Federal eRulemaking Portal—“Regulations.gov”: Go to www.regulations.gov. Enter “Docket ID OCC-2016-0022” in the Search Box and click “Search.” Click on “Comment Now” to submit public comments.

    • Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments.

    Email: [email protected].

    Mail: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., suite 3E-218, mail stop 9W-11, Washington, DC 20219.

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    You may review comments and other related materials that pertain to this rulemaking action by any of the following methods:

    Viewing Comments Electronically: Go to www.regulations.gov. Enter “Docket ID OCC-2016-0022” in the Search box and click “Search.” Click on “Open Docket Folder” on the right side of the screen and then “Comments.” Comments can be filtered by clicking on “View All” and then using the filtering tools on the left side of the screen.

    • Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov. Supporting materials may be viewed by clicking on “Open Docket Folder” and then clicking on “Supporting Documents.” The docket may be viewed after the close of the comment period in the same manner as during the comment period.

    Viewing Comments Personally: You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649-6700 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments.

    FOR FURTHER INFORMATION CONTACT:

    Casey Scott Laxton, Counsel, Beth Kirby, Assistant Director, or Ted Dowd, Director, Securities and Corporate Practices Division, (202) 649-5510; Carl Kaminski, Special Counsel, Legislative and Regulatory Activities Division, (202) 649-5490.

    SUPPLEMENTARY INFORMATION: I. Background

    A national bank may engage in activities that are part of, or incidental to, the business of banking under 12 U.S.C. 24(Seventh). Section 24(Seventh) lists several activities that are part of the business of banking; for example, it expressly provides that national banks may buy and sell exchange, coin, and bullion.

    In addition to these enumerated powers, section 24(Seventh) authorizes national banks to exercise all such incidental powers as shall be necessary to carry on the business of banking. National banks also are authorized to engage in any other activities not expressly enumerated in the statute that the Comptroller of the Currency reasonably determines are part of the business of banking.1

    1 NationsBank of N.C., N.A. v. Var. Ann. Life. Ins. Co., (VALIC) 513 U.S. 251, 258-59 (1995).

    In Interpretive Letter 693,2 issued approximately twenty years ago, the OCC authorized national banks to buy and sell copper on the grounds that trading copper was becoming increasingly similar to trading gold, silver, platinum, and palladium. The letter observed that copper was traded in liquid markets; that it was traded in a form standardized as to weight and purity; and that the bank seeking authority to engage in the activity traded copper under policies and procedures similar to those that governed trading precious metals. The letter concluded that national banks could buy and sell copper under the express authority to buy and sell coin and bullion and as part of or incidental to the business of banking. The scope of the authorization in Interpretive Letter 693 was sufficiently broad to permit national banks to buy and sell copper in the form of cathodes, which are used for industrial purposes.

    2 1995 WL 788816 (Nov. 14, 1995).

    In this notice of proposed rulemaking, the OCC proposes to prohibit national banks from dealing and investing in a metal (or alloy), including copper, in a form primarily suited to industrial or commercial use (industrial or commercial metal).3 The proposal: (i) Excludes industrial and commercial metals from the terms “exchange,” “coin,” and “bullion” in 12 U.S.C. 24(Seventh); and (ii) provides that dealing or investing in them is not part of, or incidental to, the business of banking. Examples of metals and alloys in a form primarily suited for industrial or commercial use include copper cathodes, aluminum T-bars, and gold jewelry. The OCC does not believe that dealing or investing in these metals is appropriate for national banks. The proposed rule would supersede Interpretive Letter 693.4

    3 The OCC considers the definition of industrial or commercial metal to include a warehouse receipt for such metal.

    4See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005) (agency reconsiderations of prior interpretations entitled to judicial deference so long as the agency adequately explains the reasons for the change).

    The proposed rule also applies to federal savings associations (FSA). The Home Owners' Loan Act does not expressly authorize FSAs to buy or sell exchange, coin, and bullion.5 FSAs do have incidental authority to buy and sell precious metals in certain cases and to sell gold and silver coins minted by the U.S. Treasury.6 However, the OCC is not aware of any precedent authorizing FSAs to buy and sell any industrial or commercial metal. The OCC does not interpret FSAs' incidental powers to buy and sell metals to be broader than those of national banks. To avoid doubt, and to further integrate national bank and FSA regulations, the proposed rule prohibits FSAs from dealing and investing in industrial or commercial metal.7

    5See 12 U.S.C. 1464(c).

    6See, e.g., OTS Op. Ch. Couns. P-2006-1 (Mar. 6, 2006), 2006 WL 6195026 (engaging in precious metal transactions on behalf of customers); Gold Bullion Coin Transactions, 51 FR 34950 (Oct. 1, 1986); Letter from Jack D. Smith, Deputy General Counsel, Federal Home Loan Bank Board, 1988 WL 1021651 (May 18, 1988). All precedents (orders, resolutions, determinations, agreements, regulations, interpretive rules, interpretations, guidelines, procedures, and other advisory materials) made, prescribed, or allowed to become effective by the former Office of Thrift Supervision or its Director that apply to FSAs remain effective until the OCC modifies, terminates, sets aside, or supersedes those precedents. 12 U.S.C. 5414(b).

    7 The proposed rule indirectly applies to federal branches and agencies of foreign banks because they operate with the same rights and privileges (and subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations) as national banks. 12 CFR 28.13(a)(1). The proposed rule also indirectly applies to insured state banks and state savings associations. See 12 U.S.C. 1831a, 1831e.

    II. Description of the Proposed Rule A. Industrial or Commercial Metal Is Not “Exchange, Coin, and Bullion”

    As noted above, the National Bank Act authorizes national banks to buy and sell exchange, coin, and bullion. In this notice of proposed rulemaking, the OCC is proposing to exclude from the scope of these terms metals in a form primarily suited to industrial or commercial use.

    Banking Circular 58 (BC-58) 8 sets forth general guidelines that apply to national banks' coin and bullion activities. It defines “coin” as “coins held for their metallic value which are minted by a government, or exact restrikes of such coins minted at a later date by or under the authority of the issuing government.” Contemporaneous OCC interpretive letters elaborated that “coin” referred only to media of exchange.9 BC-58 defines “bullion” as “uncoined gold or silver in bar or ingot form.” These definitions do not encompass industrial or commercial metal.

    8 BC-58 (Rev.) (Nov. 3, 1981). The OCC published the original version in 1974.

    9 Interpretive Letter 326 (Jan. 17, 1985), 1985 WL 202590; Interpretive Letter 252 (Oct. 26, 1982), 1982 WL 54157; Letter from Peter Liebesman, Assistant Director, Legal Advisory Services Division (Feb. 18, 1982), 1982 WL 170844. But see Letter from Richard V. Fitzgerald, Deputy Chief Counsel (Nov. 4, 1983), 1983 WL 145720 (concluding that national banks could purchase and sell the Department of Treasury's commemorative Olympic coins based on their metallic value even though it was unlikely that the coins would be used as a medium of exchange).

    Interpretive letters published after BC-58 interpreted national banks' authority to buy coin and bullion to include other precious metals, namely platinum and palladium. Consistent with BC-58's definition of “coin,” the OCC in 1987 found that legal tender platinum coins held for their metallic value were “coin.” 10 That same letter prohibited dealing in platinum bars. However, in 1991, the OCC concluded that market developments warranted treating platinum bars as bullion.11 The OCC also found trading in platinum bars to be incidental to trading in platinum coins.12 For similar reasons, the OCC concluded palladium was coin and bullion and national banks could trade and deal in palladium as part of the business of banking.13 In support of its position, the OCC noted that the London Platinum and Palladium Market had linked platinum and palladium for market making and regulatory purposes and that most of the Market's members were banks.

    10 Letter from William J. Stolte, Chief National Bank Examiner (July 29, 1987), 1987 WL 149775.

    11 Interpretive Letter 553 (May 2, 1991), 1991 WL 340660 (noting that (i) the financial press considered platinum coins and bars to be bullion and (ii) a state statute defined “bullion” to include platinum).

    12Id.

    13 Interpretive Letter 685 (Aug. 4, 1995), 1995 WL 550220.

    However, other interpretive letters recognized that not every precious metal is coin or bullion. Jewelry, the OCC determined, is not.14

    14See No-Objection Letter 88-8 (May 26, 1988), 1988 WL 284872 (selling gold and silver jewelry is impermissible general merchandising); Letter from Madonna K. Starr, Attorney (Oct. 3, 1986), 1986 WL 144029 (limited design jewelry is not exchange, coin, or bullion).

    The OCC proposes to conclude that “exchange, coin, and bullion” does not encompass industrial or commercial metal. The OCC believes this conclusion is consistent with the National Bank Act and current market practice. For example, in the mid-19th century, when Congress passed the National Bank Act, “bullion” meant metal suitable for coining, not metal suitable for making wires.15 The contemporary understanding of “bullion” is broader—most currency is no longer made of precious metal—but the contemporary understanding does distinguish bullion from industrial or commercial metal. For example, modern bullion markets trade precious metals by the kilogram.16 By contrast, industrial and commercial metals markets trade base metals in quantities suitable for industrial or commercial use.17 The following table illustrates trading differences between bullion markets and industrial or commercial metal markets.

    15See Act of June 22, 1874, 18 Stat. 202 (authorizing the transfer from the U.S. bullion fund of refined gold bars bearing the United States stamp of fineness, weight, and value, or bars from any melt of foreign coin or bullion of standard equal to or above that of the United States); Act of Feb. 12, 1873 § 31, 17 Stat. 429 (The bullion thus placed in the hands of the melter and refiner shall be subjected to the several processes which may be necessary to form it into ingots of the legal standard, and of a quality suitable for coinage.)

    16See, e.g., London Bullion Market Association, The Good Delivery Rules for Gold and Silver Bars 11 (Mar. 2015), available at http://www.lbma.org.uk/assets/market/gdl/GD_Rules_15_Final%2020160512.pdf; London Platinum & Palladium Market, “The London/Zurich Good Delivery List,” http://www.lppm.com/good-delivery/ (visited July 19, 2016).

    17 The London Metal Exchange (LME) describes itself as the “world centre for the trading of industrial metals—more than three quarters of all non-ferrous metal futures business is transacted on [its] platforms.” LME, “About us,” http://www.lme.com/about-us (visited July 19, 2016). The LME trades aluminum, aluminum alloys, copper, lead, nickel, tin, and zinc. LME, “Metals,” http://www.lme.com/metals (visited July 19, 2016).

    Contract Contract size Industrial/Commercial Metal Markets LME physical copper 25,000 kg. LME copper future 25,000 kg. COMEX copper future 25,000 lbs. (about 11,340 kg). SHFE copper future 5,000 kg. LME physical aluminum 25,000 kg. LME aluminum future 25,000 kg. COMEX aluminum future 25,000 kg. SHFE aluminum future 5,000 kg. Bullion Markets LBMA physical gold 350-430 troy oz. (about 11-13 kg). LBMA physical silver 750-1100 troy oz. (about 23-34 kg). LPPM physical platinum 1-6 kg. LPPM physical palladium 1-6 kg. Key: LME: London Metals Exchange. COMEX: Commodity Exchange. SHFE: Shanghai Futures Exchange. LBMA: London Bullion Market Association. LPPM: London Platinum & Palladium Market.

    In general, gold, silver, platinum, and palladium are bullion today because they:

    • Trade in troy ounces or grams rather than metric tons; 18

    18See, e.g., Bloomberg, “Gold, Silver, and Industrial Metals Prices,” http://www.bloomberg.com/markets/commodities/futures/metals.

    • Trade in pure forms; 19

    19See, e.g., London Bullion Market Association, The Good Delivery Rules for Gold and Silver Bars 6 (Mar. 2015) (minimum fineness for gold is 99.5 percent and for silver is 99.9 percent); London Platinum & Palladium Market, “The London/Zurich Good Delivery List,” http://www.lppm.com/good-delivery/ (minimum fineness for platinum and palladium is 99.95 percent).

    • Trade in a form suitable for coining;

    • Trade as precious metals in the world's major organized markets, including the London bullion markets; and

    • Are considered currency by the International Organization for Standardization.20

    20 ISO 4217 (Aug. 1, 2015), available at http://www.currency-iso.org/dam/downloads/lists/list_one.xls.

    Gold, silver, platinum, and palladium in industrial or commercial form are not exchange, coin, or bullion.

    B. Dealing and Investing in Industrial or Commercial Metal Is Neither Part of, Nor Incidental to, the Business of Banking

    Interpretive Letter 693 concluded that national banks could buy and sell copper (including industrial copper) as a part of or incidental to the business of banking. The OCC has reviewed the bases for the conclusion in Interpretive Letter 693 that buying and selling industrial copper is part of the business of banking, including developments in copper markets that followed this letter. For the following reasons, the OCC now believes that buying and selling copper—or any other metal—in industrial or commercial form for the purpose of dealing or investing in that metal is not part of the business of banking.

    When the OCC issued Interpretive Letter 693 in 1995, the agency noted increasing similarity between transactions involving copper and those transactions already conducted by national banks with respect to gold, silver, platinum and palladium (precious metals). This increasing similarity informed the OCC's view at that time that buying and selling copper, including dealing and investing, was part of the business of banking. However, copper markets have not increased in similarity to precious metal markets.21 Instead, as noted in detail above, copper is generally traded as a base metal.22

    21 Events subsequent to Interpretive Letter 693 have confirmed copper's status as a base metal. In 2000, the LME introduced a future on a base metal index containing copper, aluminum, lead, nickel, tin, and zinc. Then, in 2006, it introduced “mini” futures for copper, aluminum, and zinc. Similarly, many firms have launched exchange-traded funds (ETFs) that invest solely in gold, silver, palladium, platinum, or some combination thereof, indicating a widespread belief that these metals are a store of value. However, there is no copper ETF. Finally, the OCC understands that national banks that trade copper treat it as a base metal and trade it alongside aluminum and zinc rather than gold and silver.

    22See generally U.S. Senate Permanent Subcommittee on Investigations, Wall Street Bank Involvement with Physical Commodities 364 (2014) (identifying banks, trading firms, analysts, and exchanges that treat copper as a base metal for trading and risk management purposes).

    The OCC believes that dealing and investing in industrial or commercial metals, including base and precious metals in this form, is not the functional equivalent of dealing and investing in coin and bullion. The paradigmatic example of functional equivalence is that a lease is in economic substance a secured loan.23 But the significant differences between dealing in industrial or commercial metals and dealing in coin and bullion demonstrate that the former is not, in economic substance, the same as the latter. Most importantly, industrial and commercial metals trade in base metal markets by the ton in cathode or other industrial form, while coin and bullion trade in precious metal markets by the troy ounce or kilogram in bar or ingot form. In addition, banks' risk management systems distinguish between precious metals and base metals.

    23See M&M Leasing Corp. v. Seattle First Nat'l Bank, 563 F.2d 1377 (9th Cir. 1977).

    The OCC has also considered other factors identified in relevant precedent for determining whether dealing in or investing in industrial or commercial metal is part of the business of banking.24 The OCC does not believe that analysis under these factors supports a conclusion at this time that this activity is part of the business of banking. For example, the OCC has not seen evidence that this activity strengthens a bank by benefiting its customers or its business.25 Nor is the OCC aware of any state-chartered banks dealing in or investing in industrial or commercial metal.26 Indeed, the OCC has not identified any precedent authorizing that activity for state banks.

    24See, e.g., Merchants' Nat'l Bank v. State Nat'l Bank, 77 U.S. 604, 648 (1871) (holding that national banks could certify checks because the activity had “grown out of the business needs of the country.”).

    25 Currently, national banks' dealing and investments in industrial or commercial metal are limited, suggesting that the business needs of the United States economy are not meaningfully affected by national banks' dealing in industrial or commercial metal. Nor is there evidence that the amount of revenue from industrial or commercial metal dealing and investing meaningfully improve national banks' financial strength. In any case, the prospect for additional revenue alone is not sufficient to deem an activity to be part of the business of banking. See VALIC, 513 U.S. at 258 n.2. See also No-objection Letter 88-8 (May 26, 1988), 1988 WL 284872 (concluding that it is impermissible for a national bank to make substantial profits from the sale of merchandise).

    26See Colorado Nat'l Bank v. Bedford, 310 U.S. 41, 49-50 (1940).

    As described above, under 12 U.S.C. 24 (Seventh), a national bank has the power to exercise all such incidental powers as shall be necessary to carry on the business of banking. An activity is incidental to the business of banking if it is convenient or useful to an activity that is part of the business of banking.27

    27 Interpretive Letter 1071 (Sept. 6, 2006), 26 OCC Q.J. 46, 2007 WL 5122909 (citing Arnold Tours, Inc. v. Camp, 472 F.2d 427, 431-32 (1st Cir. 1972)).

    The OCC believes that dealing and investing in industrial or commercial metal is not incidental to the business of banking. Some customers may wish to trade industrial or commercial metal with national banks. However, because few banks buy or sell industrial or commercial metal in the ordinary course of business, it does not appear that dealing or investing in industrial or commercial metal significantly enhances national banks' ability to offer banking products and services, including those related to precious metals. Moreover, dealing and investing in industrial or commercial metal does not appear to enable national banks to use capacity acquired for banking operations or otherwise avoid economic loss or waste. Therefore, the OCC concludes national banks may not deal or invest in industrial or commercial metal under their incidental powers.

    C. Transactions in Industrial or Commercial Metal That May Be Permissible

    National banks do have incidental authority to buy and sell industrial or commercial metal in limited cases. Buying or selling industrial or commercial metal could be incidental to lending activities. For example, a mining company could post a copper cathode as collateral for a loan. Pursuant to the national bank's authority to acquire property in satisfaction of debt previously contracted, the bank could seize and then sell the copper to mitigate loan losses if the borrower defaulted.28 National banks also have incidental authority to buy and sell nominal amounts of industrial or commercial metal to hedge customer-driven commodity derivatives.29 The proposed rule would not prohibit these purchases and sales because they are not dealing or investing.30

    28Cf. Cooper v. Hill, 94 F. 582 (8th Cir. 1899) (foreclosure of a mine); First Nat'l Bank of Parker v. Peavy Elevator Co., 10 S.D. 167, 170 (1897) (foreclosure of grain seed and subsequent sale).

    29 Interpretive Letter 684 (Aug. 4, 1995), 1995 WL 550219; OCC Bulletin 2015-35, Quantitative Limits on Physical Commodity Transactions (Aug. 4, 2015) (explaining that “nominal” means 5 percent of the bank's short positions in a particular commodity).

    30Cf. First Nat'l Bank v. Nat'l Exch. Bank, 92 U.S. 122, 128 (1875) (“In the honest exercise of the power to compromise a doubtful debt owing to a bank, it can hardly be doubted that stocks may be accepted in payment and satisfaction, with a view to their subsequent sale or conversion into money so as to make good or reduce an anticipated loss. Such a transaction would not amount to a dealing in stocks. It was, in effect, so decided in Fleckner v. Bank U.S., 8 Wheat. 351 [22 U.S. 338 (1823)], where it was held that a prohibition against trading and dealing was nothing more than a prohibition against engaging in the ordinary business of buying and selling for profit, and did not include purchases resulting from ordinary banking transactions.”).

    Similarly, national banks may buy and sell industrial or commercial metal as part of their leasing business. 12 U.S.C. 24 (Seventh); 12 U.S.C. 24 (Tenth); 12 CFR 23.4. A car, for example, contains metal in a commercial form, but buying a car to lease it is not dealing or investing in commercial metal. Rather, a lease, like a reverse repurchase transaction, is a secured loan in a different form. National banks may also buy and sell industrial or commercial metals to install pipes and electrical wiring in their physical premises. 12 U.S.C. 29 (First); 12 CFR 7.1000. This activity is clearly not dealing or investing in industrial or commercial metal.

    The OCC views national banks' lending authority 31 as including buying and selling industrial or commercial metal under reverse repurchase agreements that are the functional and economic equivalent of secured loans. As described below, a standard reverse repurchase agreement for metal used to provide financing to a bank customer ordinarily does not indicate dealing or investing in the metal. However, the OCC notes that the facts and circumstances of a particular transaction may warrant a different conclusion. For example, to the extent a reverse repurchase agreement or related activity is structured in a way that causes a bank to incur commodity price risk or indicates market speculation, the OCC may view the transaction to be dealing or investing in the metal.

    31See 12 U.S.C. 24 (Seventh) (stating that discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt and loaning money on personal security are part of the business of banking).

    In a reverse repurchase agreement, a bank extends credit by simultaneously buying collateral from a client and agreeing to sell the collateral back to the client at a future date. The difference between the sale and purchase price is effectively the interest the client pays for the extension of credit. If the reverse repurchase agreement counterparty defaults, the bank can mitigate its losses by selling the collateral without first foreclosing on it. Financing customer inventory is a traditional bank activity; using reverse repurchase agreements rather than loans to provide the financing is merely a different way of providing financing.32 Financing customer inventory using reverse repurchase agreements in itself does not indicate dealing or investing in the metal. However, pledging, selling, or rehypothecating metal acquired under reverse repurchase agreements suggests dealing or investing activity. So, too, does assuming commodity price risk. For example, an agreement in which the counterparty sells a metal at a certain price to the bank and then repurchases the metal at a price that depends on the metal's then-current market price indicates dealing or investing activity: The bank is assuming the metal's price risk. On the other hand, setting the repurchase price at the sale price plus a spread based on the time value of money is equivalent to a secured loan.

    32 Under the National Bank Act, credit exposures from repurchase and reverse repurchase agreements are loans and extensions of credit subject to a national bank's lending limits. 12 U.S.C. 84(b)(1)(C). See also Letter from Charles F. Byrd, Assistant Director, Legal Advisory Services Division, [1978-1979 Transfer Binder] Fed. Banking L. Rep. (CCH) ¶ 85,020 (Aug. 30, 1977) (repurchase and reverse repurchase agreements are extensions of credit subject to 12 U.S.C. 82 (repealed by Garn-St. Germain Depository Institutions Act of 1982, Pub. L. 97-320, 402)).

    The OCC invites comment on the treatment of reverse repurchase agreements under the proposed rule. In particular, the OCC seeks comment on whether reverse repurchase agreements that do not present commodity price risk for a bank and do not indicate market speculation are appropriately viewed to not indicate dealing or investing in metal. The OCC also seeks comment on whether there are forms of reverse purchase agreements or related activities that warrant a determination that the activity is dealing or investing in metal. If so, should the OCC include such agreements in the final rule's dealing or investing prohibition?

    The proposal does not prohibit national banks from buying and selling metal through transitory title transfers entered into as part of a customer-driven financial intermediation business.33 Metal owned through a transitory title transfer typically does not entail physical possession of a commodity; the ownership occurs solely to facilitate the underlying transaction and lasts only for a moment in time. For these reasons, the OCC does not consider transitory title transfers to be dealing or investing in industrial or commercial metal for purposes of this proposal. Interpretive Letter 1073 34 provides that national banks may hedge metal derivative transactions on a portfolio basis with over-the-counter derivative transactions that settle in cash or transitory title transfer. Interpretive Letter 1073 also provides that a national bank may engage in transitory title transfers in metals for the accommodation of customers. The OCC concluded in Interpretive Letter 1073 that transitory title transfers involving metals do not entail the physical possession of commodities.35 The OCC's analysis in this letter noted that transitory title transfers do not involve the customary activities relating to, or risks attendant to, commodity ownership, such as storage costs, insurance, and environmental protection. The OCC continues to believe that transitory title transfers do not constitute physical possession of commodities and therefore does not consider transitory title transfers to be dealing or investing in industrial or commercial metal for purposes of this proposal.36

    33 For purposes of this proposal, the OCC considers a transitory title transfer to be back-to-back contracts providing for the receipt and immediate transfer of title to the metal. This means that a bank holds title to the metal for no more than a legal instant. See Interpretive Letter 962 (Apr. 21, 2003), 2003 WL 21283155 (“[T]ransitory title transfers preclude actual delivery by passing title down the chain from the initial seller to the ultimate buyer in a series of instantaneous back-to-back transactions. Each party in the chain has title for an instant but does not take actual physical delivery (other than the ultimate buyer which, in no case, will be the Bank.”)).

    34 26 OCC Q.J. 46, 2007 WL 5122911 (Oct. 19, 2006).

    35See also OCC Bulletin 2015-3 (Aug. 4, 2015) (noting that a physical commodity that a bank acquired and then immediately sold by transitory title transfer would not be included in the bank's physical inventory of that commodity).

    36 In contrast to transitory title transfers, the OCC considers a commodity held by warehouse receipt for more than a legal instant to entail physical possession of the commodity. See OCC Bulletin 2015-3 (“[A] bank that satisfies certain conditions may engage in physical commodity transactions (for example, by buying or selling title to a commodity via a warehouse receipt or bill of lading) to manage the risks of commodity derivatives.”)); Interpretive Letter 684 (August 4, 1995), 1995 WL 550219 (recognizing physical possession of a commodity by warehouse receipt). The OCC notes that the customary activities relating to, or risks attendant to, commodity ownership by warehouse receipt are distinguishable from those involving transitory title transfer. For example, Interpretive Letter 684 provides that the OCC expects a bank engaged in physical commodity hedging, either through warehouse receipt or “pass-through” delivery, to adopt and maintain “safeguards designed to manage the risks associated with storing, transporting, and disposing of commodities of which the bank has taken delivery, including policies and procedures designed to ensure that the bank has adequate levels of insurance (including insurance for environmental liabilities) which, after deductions, are commensurate with the risks assumed.”

    Notwithstanding the above, the OCC may consider alternative approaches for transitory title transfers in the final rule if it determines that these transactions present risks similar to holding physical metal. The OCC invites comment on whether it should continue to view transitory title transfers as transactions that do not entail physical possession of a commodity. In particular, the OCC seeks comment on whether transitory title transfers involving metals present risks that warrant treating such transactions as physical holdings. If so, then the prohibition on dealing and investing in industrial or commercial metal would apply to metals bought or sold by transitory title transfer.37

    37 The OCC notes that even if it determines that a transitory title transfer entails physical possession of a commodity, national banks engaged in a customer-driven financial intermediation business could still enter into such transactions under the proposal, provided the transaction is a hedge and is nominal.

    III. Request for Comment

    The OCC invites comment on all aspects of this proposal, including the questions in part II.C of this Supplementary Information.

    In addition, the OCC requests comment on the appropriate treatment of existing holdings of industrial or commercial metal. In other contexts, the OCC provides five years to divest nonconforming assets, with the possibility of a five-year extension. Are there reasons a similar approach would not work here? Are there compelling reasons to grandfather existing holdings indefinitely?

    IV. Regulatory Analysis Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501-3520, the OCC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. This notice of proposed rulemaking does not introduce any new collections of information, therefore, it does not require a submission to OMB.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), requires an agency, in connection with a proposed rule, to prepare an Initial Regulatory Flexibility Analysis describing the impact of the proposed rule on small entities (defined by the Small Business Administration (SBA) for purposes of the RFA to include banking entities with total assets of $550 million or less) or to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities.

    As of December 31, 2015, the OCC supervised 1,032 small entities.38 Although the rule applies to all OCC-supervised small entities, and thus affects a substantial number of small entities, no small entities supervised by the OCC currently buy or sell metal in a physical form primarily suited to commercial or industrial use for the purpose of dealing or investing in that metal. Thus, the rule will not have a substantial impact on any OCC-supervised small entities.

    38 The OCC calculated the number of small entities using the SBA's size thresholds for commercial banks and savings institutions, and trust companies, which are $550 million and $38.5 million, respectively. Consistent with the General Principles of Affiliation, 13 CFR 121.103(a), the OCC counted the assets of affiliated financial institutions when determining whether to classify a national bank or federal savings association as a small entity. The OCC used December 31, 2015, to determine size because a “financial institution's assets are determined by averaging the assets reported on its four quarterly financial statements for the preceding year.” See footnote 8 of the SBA's Table of Size Standards.

    Therefore, the OCC certifies that the proposed rule would not have a significant economic impact on a substantial number of OCC-supervised small entities.

    Unfunded Mandates Reform Act of 1995 Determination

    The OCC analyzed the proposed rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). Under this analysis, the OCC considered whether the proposed rule includes a federal mandate that may result in the expenditure by state, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation).

    Although the proposed rule would apply to all OCC-supervised institutions, very few of these institutions are currently involved in activities involving dealing or investing in copper or other metals in a physical form primarily suited to commercial or industrial use.

    While the proposed rule may prevent OCC-supervised institutions from realizing potential gains from prohibited investments in physical metals, the proposed rule also may protect them from realizing potential losses from investments in physical metals. The OCC is not able to estimate these potential gains or losses because they will depend on future fluctuations in the prices of the various physical metals. However, the OCC does expect OCC-supervised institutions to be able to achieve comparable returns in alternative non-prohibited investment opportunities. Thus, the OCC estimates that the opportunity cost of the proposed rule will be near zero.

    The proposed rule may impose one-time costs on affected institutions with respect to the disposal of current physical metal inventory that a bank may not deal in or invest in under the rule. This cost will depend to some extent on the amount of physical metal inventory that affected institutions must dispose of. However, a gradual sell-off should not affect market prices and the affected institutions would receive fair value for their metals. Under these circumstances, the OCC estimates that the disposal costs will also be minimal.

    Finally, by establishing that buying and selling physical metal in commercial or industrial form is generally not part of the business of banking, the rule implies that customers of OCC-supervised institutions will have to identify another reliable source of supply of physical metals and that OCC-supervised institutions will be less able to compete with non-bank metals dealers. Given how technology has made the physical metals markets more accessible, the OCC expects bank customers will face minimal costs associated with identifying another supplier of physical metals. The OCC also expects that losing the ability to compete with non-bank metal dealers will not significantly detract from the strength of OCC-supervised institutions, especially given that the proposed rule would recognize several business-of-banking exceptions to the prohibition on buying and selling physical metal.

    For the reasons described above, the OCC has determined that the proposed rule would not result in expenditures by state, local, and Tribal governments, or by the private sector, of $100 million or more. Accordingly, the OCC has not prepared a written statement to accompany the proposed rule.

    List of subjects in 12 CFR Part 7

    Banks, banking, Computer technology, Credit, Federal savings associations, Insurance, Investments, Metals, National banks, Reporting and recordkeeping requirements, Securities, Surety bonds.

    For the reasons set forth in the preamble, OCC proposes to amend 12 CFR part 7 as follows:

    PART 7—BANK ACTIVITIES AND OPERATIONS 1. The authority citation for part 7 is amended to read as follows: Authority:

    12 U.S.C. 1 et seq., 25b, 71, 71a, 92, 92a, 93, 93a, 371, 371a, 481, 484, 1463, 1464, 1818, and 5412(b)(2)(B).

    2. Add § 7.1022 to subpart A to read as follows:
    § 7.1022 National bank authority to buy and sell exchange, coin, and bullion.

    (a) In this section, industrial or commercial metal means metal (including an alloy) in a physical form primarily suited to industrial or commercial use, for example, copper cathodes.

    (b) Scope of authorization. Section 24 (Seventh) of the National Bank Act authorizes national banks to buy and sell exchange, coin, and bullion. Industrial or commercial metal is not exchange, coin, and bullion within the meaning of this authorization.

    (c) Buying and selling metal as part of or incidental to the business of banking. Section 24 (Seventh) authorizes national banks to engage in activities that are part of, or incidental to, the business of banking. Buying and selling industrial or commercial metal for the purpose of dealing or investing in that metal is not part of or incidental to the business of banking pursuant to section 24 (Seventh).

    (d) Other authorities not affected. This section shall not be construed to preclude a national bank from acquiring or selling metal in connection with its incidental authority to foreclose on loan collateral, compromise doubtful claims, or avoid loss in connection with a debt previously contracted. This section also shall not be construed to preclude a national bank from buying and selling physical metal to hedge a derivative for which that metal is the reference asset so long as the amount of the physical metal used for hedging purposes is nominal.

    3. Add § 7.1023 to subpart A to read as follows:
    § 7.1023 Federal savings associations, prohibition on industrial or commercial metal dealing or investing.

    (a) In this section, industrial or commercial metal means metal (including an alloy) in a physical form primarily suited to industrial or commercial use, for example, copper cathodes.

    (b) Federal savings associations may not deal or invest in industrial or commercial metal. Federal savings associations may not buy or sell industrial or commercial metal if the purchase or sale is impermissible for a national bank.

    Dated: September 7, 2016 Thomas J. Curry, Comptroller of the Currency.
    [FR Doc. 2016-22017 Filed 9-14-16; 8:45 am] BILLING CODE 4810-33-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9075; Directorate Identifier 2016-NM-082-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 and 787-9 airplanes. This proposed AD was prompted by a report indicating that a portion of the sealant above the engine pylon between the wing skin and the vapor barrier may have been omitted. This proposed AD would require an inspection for missing sealant in the seam on the outside and inside of the engine struts, and corrective actions if necessary. We are proposing this AD to detect and correct missing sealant above the engine pylon between the wing skin and the vapor barrier, which can create an unintended leak path for fuel, potentially draining onto the aft fairing heat shield above the engine and onto hot engine parts or brakes, which could lead to a major ground fire.

    DATES:

    We must receive comments on this proposed AD by October 31, 2016.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9075.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9075; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Sherry Vevea, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6514; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9075; Directorate Identifier 2016-NM-082-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received a report indicating that a portion of the sealant above the engine pylon between the wing skin and the vapor barrier may have been omitted due to a manufacturing sequencing issue. This condition, if not corrected, can create an unintended leak path for fuel, potentially draining onto the aft fairing heat shield above the engine and onto hot engine parts or brakes, which could lead to a major ground fire.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB570029-00, Issue 001, dated February 23, 2016. The service information describes procedures for doing an inspection for missing sealant in the seam on the outside and inside of the engine struts, and installing missing sealant. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9075.

    The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Costs of Compliance

    We estimate that this proposed AD affects 32 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection 3 work-hours × $85 per hour = $255 $0 $255 $8,160

    We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Repair Up to 3 work-hours × $85 per hour = $255 (1) (1) 1 We have received no definitive data that would enable us to provide cost estimates for the on-condition material costs specified in this proposed AD.

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-9075; Directorate Identifier 2016-NM-082-AD. (a) Comments Due Date

    We must receive comments by October 31, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 and 787-9 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB570029-00, Issue 001, dated February 23, 2016.

    (d) Subject

    Air Transport Association (ATA) of America Code 57; Wings.

    (e) Unsafe Condition

    This AD was prompted by a report indicating that a portion of the sealant above the engine pylon between the wing skin and the vapor barrier may have been omitted. We are issuing this AD to detect and correct missing sealant above the engine pylon between the wing skin and the vapor barrier, which can create an unintended leak path for fuel, potentially draining onto the aft fairing heat shield and onto hot engine parts or brakes, which could lead to a major ground fire.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    Within 60 months after the effective date of this AD: Do a general visual inspection for missing sealant in the seam on the outside and inside of the engine struts; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570029-00, Issue 001, dated February 23, 2016. Do all applicable corrective actions before further flight.

    (h) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (h)(4)(i) and (h)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (i) Related Information

    (1) For more information about this AD, contact Sherry Vevea, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425 917 6514; fax: 425 917 6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on September 6, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22101 Filed 9-14-16; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL TRADE COMMISSION 16 CFR Part 682 RIN 3084-AB41 Disposal of Consumer Report Information and Records AGENCY:

    Federal Trade Commission.

    ACTION:

    Request for public comment.

    SUMMARY:

    The Federal Trade Commission (“FTC” or “The Commission) requests public comment on its rule regarding Disposal of Consumer Report Information and Records (“Disposal Rule” or “Rule”). The Commission is soliciting comment as part of the FTC's systematic review of all current Commission regulations and guides.

    DATES:

    Comments must be received on or before November 21, 2016.

    ADDRESSES:

    Interested parties may file a comment online or on paper by following the Instructions for Submitting Comments part of the SUPPLEMENTARY INFORMATION section below. Write “Disposal Rule, 16 CFR part 682, Project No. 165410” on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/disposalrule by following the instructions on the web-based form. If you prefer to file your comment on paper, write “Disposal Rule, 16 CFR part 682, Project No. 165410” on your comment and on the envelope and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex H), 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 H), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Tiffany George, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580, (202) 326-3040.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Fair and Accurate Credit Transactions Act (“FACTA” or “Act”) was enacted in 2003. In part, the Act amends the Fair Credit Reporting Act (“FCRA”) by imposing a requirement that any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, derived from consumer reports for a business purpose, properly dispose of any such information or compilation.1 The Act also required the Commission and other federal agencies to promulgate rules regarding this requirement.2 Further, the Act directed the Commission and other federal agencies to ensure that the rules were consistent with the requirements of the Gramm-Leach-Bliley Act (“GLBA”).3

    1 15 U.S.C. 1681w.

    2 The other agencies are the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal banking agencies, and the National Credit Union Administration. Id.

    3Id. The other agencies have incorporated the Disposal Rule requirements into their Safeguards rules and guidelines. See 12 CFR part 30, app. B (Office of the Comptroller of the Currency); 12 CFR part 208, app. D-2 and 12 CFR part 225, app. F (Board of Governors of the Federal Reserve System); 12 CFR part 364, app. B (Federal Deposit Insurance Corporation); 12 CFR part 748, app. A (National Credit Union Administration); 17 CFR 248.30 (Securities and Exchange Commission).

    Pursuant to the Act's directive, the Commission promulgated the Disposal Rule in 2004. The Disposal Rule provides that, unless otherwise stated, terms used in the Rule have the same meaning as set forth in the FCRA.4 The Rule defines “consumer information” as any record about an individual, whether in paper, electronic, or other form, that is a consumer report or is derived from a consumer report. Consumer information also means a compilation of such records. Consumer information does not include information that does not identify individuals, such as aggregate information or blind data.5 In addition, “dispose,” “disposing,” or “disposal” is defined as (1) The discarding or abandonment of consumer information, or (2) The sale, donation, or transfer of any medium, including computer equipment, upon which consumer information is stored.6

    4 16 CFR 682.1(a).

    5 16 CFR 682.1(b).

    6 16 CFR 682.1(c).

    The Disposal Rule requires that persons over which the FTC has jurisdiction who maintain or otherwise possess consumer information for a business purpose properly dispose of such information by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal.7 It also includes several examples of what the Commission believes constitute reasonable measures to protect consumer information in connection with its disposal.8 These examples are intended to provide covered entities with guidance on how to comply with the Rule but are not intended to be safe harbors or exclusive methods for compliance.9 The Rule uses a flexible “reasonable measures” standard. The FTC realizes that there are few foolproof methods of record destruction and that entities covered by the Rule must consider their own unique circumstances when determining how to comply with the Rule.

    7 16 CFR 682.2(b), 682.3(a).

    8 16 CFR 682.3(b).

    9Id.

    The Disposal Rule became effective on June 1, 2005.

    II. Regulatory Review of the Disposal Rule

    The Commission periodically reviews all of its rules and guides. These reviews seek information about the costs and benefits of the agency's rules and guides, and their regulatory and economic impact. The information obtained assists the Commission in identifying those rules and guides that warrant modification or rescission. Therefore, the Commission solicits comments on, among other things, the economic impact and benefits of the Rule; possible conflict between the Rule and state, local, or other federal laws or regulations; and the effect on the Rule of any technological, economic, or other industry changes.

    III. Issues for Comment

    The Commission requests written comment on any or all of the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues about which public comments may be submitted. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and refer to empirical data or other evidence upon which the comment is based whenever available and appropriate.

    A. General Issues

    1. Is there a continuing need for specific provisions of the Rule? Why or why not?

    2. What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?

    3. What modifications, if any, should be made to the Rule to increase its benefits to consumers?

    a. What evidence supports the proposed modifications?

    b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

    4. What significant costs, if any, has the Rule imposed on consumers? What evidence supports the asserted costs?

    5. What modifications, if any, should be made to the Rule to reduce any costs imposed on consumers?

    a. What evidence supports the proposed modifications?

    b. How would these modifications affect the benefits provided by the Rule?

    6. What benefits, if any, has the Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

    7. What modifications, if any, should be made to the Rule to increase its benefits to businesses, including small businesses?

    a. What evidence supports the proposed modifications?

    b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

    c. How would these modifications affect the benefits to consumers?

    8. What significant costs, if any, including costs of compliance, has the Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

    9. What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, including small businesses?

    a. What evidence supports the proposed modifications?

    b. How would these modifications affect the benefits provided by the Rule?

    10. What evidence is available concerning the degree of industry compliance with the Rule?

    11. What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?

    12. Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

    a. What evidence supports the asserted conflicts?

    b. With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?

    B. Specific Issues

    1. Should the Rule be modified to include more specific and prescriptive requirements for disposing of consumer information? Why or why not? If so, what requirements should be included and what sources should they be drawn from?

    a. What evidence supports such a modification?

    b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

    c. How would this modification affect the benefits to consumers?

    2. Should the Rule be modified to delete any of the existing examples or include additional examples to illustrate proper methods for disposing of consumer information? Why or why not? If so, what examples should be included and what sources should they be drawn from?

    a. What evidence supports such a modification?

    b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

    c. How would this modification affect the benefits to consumers?

    3. Should the Rule be modified to reference or incorporate any other information destruction standards or frameworks? If so, which standards should be incorporated or referenced and how should they be referenced or incorporated by the Rule? Should such standards be considered safe harbors for compliance with the Rule?

    a. What evidence supports such a modification?

    b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

    c. How would this modification affect the benefits to consumers?

    4. Under the current Disposal Rule, “Consumer information does not include information that does not identify individuals, such as aggregate information or blind data.” Should the Rule be modified to change the definition of “consumer information”? Should the definition of “consumer information” include information that can be reasonably linked to an individual in light of changes in relevant technology or market practices? Should the Rule be modified to define “aggregate information” or “blind data”?

    a. What evidence supports such a modification?

    b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

    c. How would this modification affect the benefits to consumers?

    IV. Instructions for Submitting Comments

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 21, 2016. Write “Disposal Rule, 16 CFR part 682, Project No. 165410” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as a Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or payment card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information.

    In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comments to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/disposalrule by following the instructions on the web-based form. If this document appears at http://wwww.regulations.gov, you also may file a comment through that Web site.

    If you file your comment on paper, write “Disposal Rule, 16 CFR part 682, Project No. 165410” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex H), 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 H), Washington, DC 20024.

    Visit the Commission Web site at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before November 21, 2016. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2016-22198 Filed 9-14-16; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2016-0777] RIN 1625-AA08 Special Local Regulation; San Diego Sharkfest Swim; San Diego Bay, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard is temporarily changing the enforcement date and the location of the special local regulation for the annual San Diego Sharkfest Swim event held on the navigable waters of San Diego Bay, San Diego, CA. The change of enforcement date and the location for the special local regulation is necessary to provide for the safety of life on navigable waters during the event. This action will restrict vessel traffic in the waters of the San Diego Bay, California, from 9:00 a.m. to 10:00 a.m. on October 2, 2016, from Fifth Avenue Landing to Tidelands Park, Coronado, CA. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before September 22, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0777 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Robert Cole, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7656, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking TFR Temporary Final Rule LNM Local Notice to Mariners COTP Captain of the Port SMIB Safety Marine Information Broadcast II. Background, Purpose and Legal Basis

    The San Diego Sharkfest Swim race is an annual recurring event listed in Table 1, Item 10 of 33 CFR 100.1101, Southern California Annual Marine Events for the San Diego COTP Zone. Special local regulations exist for the marine event to allow for special use of the San Diego Bay, San Diego, CA for this event. 33 U.S.C. 1233, authorizes the Coast Guard to establish and define special local regulations to promote the safety of life on the navigable waters during regattas or marine parades.

    III. Discussion of Proposed Rule

    The San Diego Sharkfest Swim race is an annual event normally held on a weekend day in September or October on the waters of San Diego Bay, San Diego, CA.

    33 CFR 100.1101 lists the annual marine events and special local regulations in Southern California within the San Diego COTP Zone. The enforcement date and regulated location for this marine event are listed in Table 1, Item 10 of Section 100.1101.

    The date listed in the Table indicates that the marine event will occur on a Saturday in September or October, on the waters of San Diego Bay, California, from Seaport Village to Coronado Ferry Landing. However, this proposed temporary rule will change the event date to Sunday, October 2, 2016, and the location from Fifth Avenue Landing to Tidelands Park, to reflect the actual date and location of the event.

    The regulations in 33 CFR 100.1101 will be temporarily suspended for Table 1, Item 10 of that section and a temporary regulation will be inserted as Table 1, Item 19 of that section in order to reflect that the special local regulation will be effective and enforced from 9:00 a.m. to 10:00 a.m. on October 2, 2016. This change is needed to accommodate the sponsor's event plan and ensure that adequate regulations are in place to protect the safety of vessels and individuals that may be present in the regulated area. No other portion of Table 1 of § 100.1101 or other provisions in § 100.1101 shall be affected by this regulation.

    The special local regulations are necessary to provide for the safety of the crew, spectators, participants, and other vessels and users of the San Diego Bay waterway. Persons and vessels will be prohibited from anchoring, blocking, loitering, or impeding within this regulated waterway unless authorized by the COTP, or his designated representative, during the proposed times. Before the effective period, the Coast Guard will publish information on the event in the weekly LNM. The proposed regulatory text appears at the end of this document.

    IV. Regulatory Analysis

    We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Optional waterway routes exist to allow boaters to travel around the marine event area, without impacting the race, once the last swimmer has cleared the middle of the channel. Moreover, the Coast Guard would publish a Local Notice to Mariners about the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 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 proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the impacted portion of the San Diego Bay, San Diego, CA, from 9:00 a.m. to 10:00 a.m. on October 2, 2016.

    This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons: Traffic will be allowed to pass around the regulated area once the last swimmer has cleared the middle of the channel with the permission of the COTP, or his designated representative, and the special local regulation is limited in size and duration. Before the effective period, the Coast Guard will publish event information on the Internet in the weekly LNM marine information report, as well as provide a SMIB via marine radio during the event. 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 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Government

    A rule has implications for federalism under E.O. 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 proposed rule under that Order and determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

    Also, this proposed 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 proposed 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 proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishment of marine event special local regulations on the navigable waters of the San Diego Bay. It 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 will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 100

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

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 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. In § 100.1101, in Table 1 to § 100.1101, suspend item “10” and add temporary item “19” to read as follows:
    § 100.1101 Southern California Annual Marine Events for the San Diego Captain of the Port Zone.

    (b) * * *

    (5) * * *

    Table 1 to § 100.1101 [* * *] *         *         *         *         *         *         * 19. San Diego Sharkfest Swim Sponsor Enviro-Sports Productions, Inc. Event Description Swim Race. Date October 2, 2016. Location San Diego Bay, CA. Regulated Area The waters of San Diego Bay, CA from Fifth Avenue Landing to Tidelands Park, Coronado, CA.
    Dated: September 1, 2016. J.R. Buzzella, Captain, U.S. Coast Guard, Captain of the Port San Diego.
    [FR Doc. 2016-22227 Filed 9-14-16; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Parts 201 and 204 [Docket No. 2016-7] Removal of Personally Identifiable Information From Registration Records AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The United States Copyright Office (“Office”) is proposing new rules related to personally identifiable information (“PII”) that may be found in the Office's registration records. First, the proposed rule will allow an author, claimant of record, or the authorized agent of the author or claimant of record, to request the removal of certain PII that is requested by the Office and collected on a registration application, such as home addresses or personal phone numbers, from the Office's internet-accessible public catalog, while retaining it in the Office's offline records as required by law. Second, the proposed rule will codify an existing practice regarding extraneous PII that applicants erroneously include on registration applications even though the Office has not requested it, such as driver's license numbers, social security numbers, banking information, and credit card information. Under the proposed rule, the Office would, upon request, remove such extraneous PII both from the Office's internet-accessible public catalog and its offline records.

    DATES:

    Written comments must be received no later than 11:59 p.m. Eastern Time on October 17, 2016.

    ADDRESSES:

    For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http://copyright.gov/rulemaking/pii/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Cindy Abramson, Assistant General Counsel, by email at [email protected], or Abioye Mosheim, Attorney Advisor, by email at [email protected] Each can be contacted by telephone by calling 202-707-8350.

    SUPPLEMENTARY INFORMATION:

    I. Background

    This proposed rule would create procedures to request removal of certain “personally identifiable information” (“PII”) from the Office's registration records. PII is generally considered to be any information that has the potential to identify a specific individual. The proposed rule concerns two distinct categories of PII as discussed below.

    The Office requests and receives certain types of PII during the registration process (e.g., dates of birth, addresses, telephone numbers, fax numbers, and email addresses). The collection of some of that information is mandated by statute or regulation; other information is optional.1 This information is referred to herein as “requested PII.”

    1 The Copyright Act requires the Office to gather the name and address of the copyright claimant; the name of the author(s), for works that are not anonymous or pseudonymous; the nationality or domicile of the author(s); and the date(s) of death for deceased author(s). See 17 U.S.C. 409. The Act also gives the Register of Copyrights the authority to require applicants to supply any other information “bearing upon the preparation or identification of the work or the existence, ownership, or duration of copyright.” Id.

    The Office does not request, but sometimes receives, additional PII when applicants choose to include information such as driver's license numbers, social security numbers, banking information, and credit card information on their registration applications. Such information is extraneous and unnecessary for the processing and maintenance of copyright registration records. This information is referred to herein as “extraneous PII.”

    As explained below, this proposed rule would treat these two categories of PII differently.

    With respect to requested PII—information that the Copyright Office purposely collects as part of registration—the Copyright Act imposes certain obligations on the Office to preserve that information as part of the public record. The Act requires the Register to ensure that “records of . . . registrations . . . are maintained, and that indexes of such records are prepared,” and that “[s]uch records and indexes . . . be open to public inspection,” thus creating a public record. 17 U.S.C. 705(a), 705(b). The public record of copyright registrations serves several important functions. Chief among these is that the record provides essential facts relevant to the copyright claim and information that a potential user of a copyrighted work can use to locate the work's owner. The registration record can also be a valuable aid for determining the term of copyright protection, by providing information such as the author's date of death, the publication date for the work, or the year of creation of the work.

    A separate provision of the Act requires the Register of Copyrights to “compile and publish . . . catalogs of all copyright registrations.” 17 U.S.C. 707(a). For most of the Office's history, this catalog was maintained in paper form as the Catalog of Copyright Entries (“CCE”). Starting in 1994, however, the Office began providing the public with access to a computerized database of post-1977 copyright registration and recordation catalog entries via the internet. Then, in 1996, the Office decided to end publication of the printed CCE and publish copyright registration information solely via an online public catalog. See 61 FR 52465 (Oct. 7, 1996).

    Initially, the PII revealed in the online public catalog was limited to names and, when volunteered, the author's year of birth. By 2007, however, with the advent of the Copyright Office's online registration system (“eCO”), a broader range of PII was pushed from the Office's registration records into the online public catalog, including the postal address of the claimant, and the name, postal address, email address and phone number of the person authorized to correspond about, and/or provide rights and permission to use, the registered work. See 72 FR 36883, 36887 (July 6, 2007). The current online public catalog, however, does not contain all of the information that is contained in the Office's full registration records. For instance, the online public catalog currently does not include the text of correspondence between the Office and the applicant. This information is maintained solely in the Office's offline records, although members of the public can obtain copies of it by making a request to the Office.

    In addition, while the information in the online public catalog initially could only be searched and retrieved via the Office's Web site, in 2007 third parties began harvesting registration information, including PII, from the catalog, and posting that information on alternative Web sites, which were then indexed by search engines. As a result, authors and claimants began noticing their personal information appearing in internet search results, and began asking the Office to remove that information from the Office's online public catalog.

    In 2008, the Office published a list of frequently asked questions (“FAQs”) on privacy to address some of these concerns.2 In the FAQs, the Office stressed that, by statute, it was required to collect certain information as part of the registration application and maintain it as part of its public records. The FAQs advised the public that if they did not wish sensitive personal information to appear in the online public catalog, they should refrain from providing it during the registration process, if possible. Applicants were advised to instead consider providing non-personal information, such as information about a third-party agent, a post office box, or a non-personal email address. But the Office warned that, if the applicant provided personal information, it would be included in the online public catalog. Both the Web page to log in to the online registration system and the Web page to download paper application forms include links to the privacy FAQs. See eCO Registration System, Privacy: Copyright Public Records, http://www.copyright.gov/eco/; Forms, http://www.copyright.gov/forms/; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices 205 (3d ed. 2014).

    2See U.S. Copyright Office, Privacy: Copyright Public Records, http://www.copyright.gov/help/faq/faq-privacy.html.

    The Office's practices have differed with respect to extraneous PII—such as driver's license numbers, social security numbers, credit card information, and banking information—that applicants sometimes include on registration applications, even though the application does not require or request such information. Given the particular sensitivity of that information, and the fact that it is not requested as part of the registration application, the Office has developed an informal practice of removing extraneous PII from its registration records, including the online public catalog and the offline records, for no fee. During the registration process, the Office may remove extraneous PII, particularly if it is sensitive information, on its own volition. After the registration is complete, the Office will remove extraneous PII upon request. See Compendium (Third) 1804.2 (“If the registration specialist discovers a social security number, driver's license number, credit card number, or bank account number in the application, he or she will remove that information from the record without communicating with the applicant [and] [i]f this information is not discovered during the examination process . . . [t]he Office will remove [it] upon written request.”).

    II. Discussion

    Since issuing its FAQs on privacy in 2008, the Office has continued to receive occasional requests to remove PII that the Office regularly collects as part of the registration application, such as home addresses, from the online registration records. In light of these requests, the Office is now proposing to amend its rules in two main respects.

    First, as explained in detail below, the Office proposes to add a new rule allowing authors and claimants to request the removal of requested PII from the online public catalog only, and replace it with non-personal information. The original information would be maintained in the Office's offline records and would be available for public inspection by visitors to the Copyright Office and upon request, consistent with the Office's statutory responsibilities to “maintain” such records and make them available to the public. 17 U.S.C. 705(a), 705(b). In proposing the rule, the Office seeks to strike an appropriate balance between the public's interest in a robust online record and concerns of privacy and safety in individual cases.

    Second, the proposed rule would codify the Office's existing practice of removing extraneous PII—such as driver's license numbers, social security numbers, banking information, and credit card information—from both the offline records and the online public catalog. The Office is also proposing a conforming amendment to its Privacy Act regulations.

    A. Removal of Requested PII From the Online Public Catalog

    Who may request removal. The proposed rule would permit an author, claimant of record, or the authorized representative of the author or claimant of record, to submit a request to remove certain PII related to a copyright registration from the Copyright Office's online registration records.

    What may be removed. In general, the proposed rule would allow for the removal of requested PII contained in the online public catalog, including home addresses, personal telephone and fax numbers, and personal email addresses. But there are two important limitations. First, the proposed rule would not allow a claimant to eliminate address information from the online public catalog, but instead would only allow for the replacement of a home address with a verifiable substitute address, such as a current post office box or third-party address (e.g., “in care of” an agent or corporation). The reason for this restriction is that allowing the wholesale removal of a claimant address would impede the public's ability to contact a copyright owner to obtain permission to use the work.

    Second, the proposed rule would not permit removal of an author or claimant's name from the online public catalog, or the replacement of an author or claimant's name with a pseudonym or an “anonymous” designation. Changing or removing a name is not necessary to prevent privacy invasions, as long as associated PII is removed. More fundamentally, allowing authors or claimants to alter their names in the online public catalog may lead to confusion regarding the term of copyright protection for the work. Under the Copyright Act, works by anonymous and pseudonymous authors have different terms of copyright protection than works by authors whose real name is revealed in the Office's records. The term for works by anonymous and pseudonymous authors is 95 years following the year of first publication, or 120 years following the year of creation, whichever term expires first. The term for works by authors whose real names are revealed in the Office's records is the life of the author plus 70 years. 17 U.S.C. 302(a), 302(c). In addition, the Act specifically contemplates that if the real name of the author of an anonymous or pseudonymous work is identified in the Office's records during the term of protection, then that work will receive the term of life plus 70 years. Id. at 302(c). But the statute does not provide for the reverse: It does not contemplate a work whose author is already known receiving the copyright term applicable to works by anonymous or pseudonymous authors if the author's real name is removed from the Office's records. Thus, if the proposed rule were to permit the removal of an author's real name from the online public catalog, or the substitution of a real name with a pseudonym, it would run contrary to the statutory scheme established by Congress, and would likely create confusion regarding the correct term of copyright.

    Moreover, in at least some situations, removal of a claimant's name could also lead to confusion about the correct copyright term. For example, an anonymous author might inadvertently reveal his or her real name in the claimant section of the registration form, in which case it may be that the term for a known author applies, rather than the term for an anonymous or pseudonymous author.3 Although that concern may arise only in rare cases, any rule would have to account for this possibility and would, as a result, be difficult to administer. Accordingly, in light of the limited privacy concerns regarding the publication of author and claimant names unconnected to other forms of PII, and consistent with existing practices, the Office has provisionally concluded that the rule should not allow removal of author or claimant names from the online public catalog. See Compendium (Third) 615.3 (“The Office will not remove the author's name from the registration record once a certificate of registration has been issued.”).

    3 One possible clue that the anonymous or pseudonymous author and the person listed in the claimant section are the same person might be if the “transfer” section of the registration form is left blank. Where the author and claimant are different people, the transfer section must indicate how the claimant came to obtain the copyright from the author. 17 U.S.C. 409(5).

    Standard for removal of requested PII. Under the proposed rule, the standard the Office would employ in determining whether to grant a request to remove requested PII from the online public catalog will depend on whether the requester is asking simply to replace the PII in the online public catalog with verifiable, non-personally-identifiable substitute information, or whether the requester instead is asking to remove the PII without providing such substitute information.

    If the requester provides the Office with verifiable, non-personally-identifiable substitute information, the Office would generally grant the request, unless it determines that the need to maintain the original information in the public record substantially outweighs the safety, privacy, or other stated concern.

    By contrast, if the requester is not providing verifiable, non-personally-identifiable substitute information, the request will only be granted if the requester demonstrates that the safety, privacy, or other stated concern substantially outweighs the need for the information to remain in the public record. This higher standard is warranted because removing information entirely from the online public catalog would result in a diminished record available for search via the internet.

    To satisfy the higher standard, a requester must provide more than a bare declaration that the author or claimant is concerned about his or her privacy or safety. For instance, a general statement such as, “I want to protect my privacy,” will not satisfy this requirement. Rather, a detailed explanation of why the request should be granted is required, such as a specific threat to safety or privacy. The more detail that is supplied by the requester, the more likely the Office is to accept the assertion on its face.

    How to submit a request for removal of requested PII. PII removal requests must be in the form of a signed affidavit mailed to the U.S. Copyright Office's Associate Register of Copyrights and Director of Public Information and Education, and contain the following information:

    • The copyright registration number(s). (A single affidavit may request removal of the same PII in multiple registration records, but as explained below, the $130 fee must be paid for each registration record.)

    • The name of the author and/or claimant of record on whose behalf the request is made.

    • Identification of the specific PII that is to be removed.

    • If applicable, verifiable, non-personally-identifiable substitute information that should replace the PII to be removed.

    • A statement providing the reasons supporting the request. If the requester is not providing verifiable, non-personally-identifiable substitute information to replace the PII to be removed, this statement must explain in detail the specific threat to personal safety or personal security, or other circumstances, supporting the request.

    • The statement, “I declare under penalty of perjury that the foregoing is true and correct.”

    • If the submission is by an authorized representative of the author or claimant of record, an additional statement, “I am authorized to make this request on behalf of [name of author or claimant of record].”

    • The signature of the author, claimant of record, or the authorized representative of the author or claimant of record.

    • The date on which the request was signed.

    • A physical mailing address to which the Office's response may be sent (if no email address is provided).

    • A telephone number.

    • An email address (if available).

    Requests to remove requested PII made by joint authors and claimants. Requests by a joint author or claimant will generally be treated as described above for a single author or claimant. In other words, a joint author or claimant may request removal of their own PII (though, obviously, not the removal of PII of their co-author or co-claimant). That having been said, the Office has some concern regarding joint authors or claimants that may initially have matching PII, such as a married couple or business partners that share office space. If such relationships were to dissolve, this rule could theoretically permit a joint author or claimant to remove critical contact information for the other author or claimant from the record. Based on this concern, the Office intends to review these requests on a case-by-case basis, but invites comments on this issue. Comments with specific examples or hypotheticals are preferred to general statements.

    Review process. All written requests for the removal of requested PII from the online public catalog will be reviewed by the Associate Register of Copyrights and Director of the Office Public Information and Education, or his or her designee(s). All decisions granting or denying requests for the removal of requested PII from the online public catalog will be sent in writing to the author, claimant of record, or the authorized representative of the author or claimant of record at the address or email indicated in the request.

    If the request is granted, the Office will act as expeditiously as possible to effectuate it. However, when a request to remove requested PII is denied, authorized persons may submit one request for reconsideration in writing and by mail, to the Office of the General Counsel within thirty (30) days from the date of the denial letter, along with the required fee.

    Effect on the public record. When requests for the removal of requested PII are granted, the alteration will only be made in the online public catalog. A copy of the original registration record containing the PII will be kept on file in the Office away from public online view. A new certificate of registration reflecting the change will be issued. A note will be added to the basic registration record and made viewable in the online public catalog indicating the modification to the catalog. The note will contain a statement, such as “*Online record modified in response to PII request effective [date modified].”

    As noted, the Office will not alter the original registration record, but will instead maintain it in its offline records. Members of the public would be able to access the original, unaltered records by visiting the Office in Washington, DC, and inspecting the offline records there. Members of the public would also, for a fee, be able to request reproductions of original registration records through the Office's Records, Research and Certification Section.

    Although the Office contemplated allowing the removal of requested PII from its offline registration records as well its online public catalog, it has preliminarily concluded that the Copyright Act limits its authority to do so. Section 409 of the Copyright Act requires the Office to collect certain information on registration applications, and section 705 requires the Office to “maintain” records of those registrations, and make them available for public inspection. To allow parties to alter the original records and render the original information wholly unavailable for public inspection would appear to be contrary to this statutory mandate. The Act does not, however, mandate that copyright registrations records be published in full on the internet. Rather, the Office's online public catalog is principally a fulfillment of the statutory mandate in 17 U.S.C. 707 that the Office compile and publish catalogs of all copyright registrations. Section 707 gives the Office the discretion to determine “on the basis of practicability and usefulness” the form (and frequency) of the information that is published in these catalogs. The legislative history on section 707(a) contemplates a move from paper-based to electronic distribution of the catalog information:

    Section 707(a) of the bill retains the present statute's basic requirement that the Register compile and publish catalogs of all copyright registrations at periodic intervals, but provides “discretion to determine, on the basis of practicability and usefulness, for the form and frequency of publication of each particular part.” This provision will in no way diminish the utility or value of the present catalogs, and the flexibility of approach, coupled with use of the new mechanical and electronic devices now becoming available, will avoid waste and result in a better product.

    See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 172 (1976).

    Though the proposed rule's approach would still allow access to PII through offline means, we believe that preventing the online dissemination of that information will substantially alleviate privacy concerns. Access to the Office's offline records is limited, as described above. In contrast, information in the online public catalog is accessible for free at any time by anyone with an internet connection and can also be harvested through automatic processes.4

    4 Nonetheless, the Office reiterates that the best way to keep PII from being included in the public record is to avoid providing it in a registration application when possible. In addition, this rule does not, and cannot, prevent third-party Web sites from collecting previously posted PII and making the information available online, even after the PII is removed from the Office's online public catalog.

    Fees. Section 708(a) of title 17 authorizes the Register to fix fees for services, other than those enumerated in paragraphs (a)(1) through (9) of § 708(a), based on cost and without prior submission to Congress.5 See 17 U.S.C. 708(a). Fees for Office services that the Register has the discretion to establish based on cost and without Congressional review include fees for copying Office records, fees for mail and delivery services, and fees for special handling. See 79 FR 15910, 15916-17 (Mar. 24, 2014). With the rule proposed herein, the Office seeks to adopt new fees to recover costs associated with two new services: First, the process of considering initial requests for removal of PII from the online public catalog, and second, the process of reconsideration of denied requests.

    5 Fees for core Office services such as registration of a claim, recording a transfer of copyright ownership or other document, issuance of a certificate of registration, and certain other services are to be submitted by the Register to Congress before they take effect. See 17 U.S.C. 708(a) and (b).

    Based on a cost analysis, the Office believes that the fee for the initial request should each be established at $130 per registration record, and the fee for reconsideration of denied requests should be established at a flat $60 regardless of the number of registration records encompassed by the request for reconsideration.

    The Office arrived at the $130 fee for initial requests by considering the time and labor required to review and process these requests, including the salaries of junior and senior staff who will take part in the review, draft the decisions, and perform the data entry; costs associated with docketing and responding to requests via U.S. mail; system costs related to entering changes into the online public catalog as well as updating the offline registration records; and costs associated with printing a new registration certificate. For example, for initial requests, senior Public Information and Education staff must review the initial requests, draft final decisions, then the Associate Register of Copyrights and Director of the Office of Public Information and Education must review and sign final decisions. When an initial request is granted, Registration Program staff must key the changes into the Office's online public catalog, and perform checks to ensure that the changes are accurately reflected in the online public catalog. For both initial requests and requests for reconsideration, the costs associated with processing the check or money order payments by the Office's accounting staff have been factored into the fee.

    For reconsiderations, the costs associated with having an attorney advisor review the reconsideration letters and draft final decisions for review by and signature of the General Counsel and Associate Register of Copyrights amount to a flat fee of $60 per request, regardless of the number of registration records referenced in the request. If the Office grants the request for reconsideration, the costs associated with keying changes into the system and printing a new certificate would have already been covered by the fee that accompanied the initial request, and so they are not included in this fee.

    Both fees are non-refundable.

    B. Removal of Extraneous PII From Online and Offline Registration Records

    As explained, the proposed rule would also codify the Office's existing practice of removing extraneous PII such as driver's license numbers, social security numbers, banking information and credit card information from the Office's online and offline records upon request. See Compendium (Third) 1804.2. Specifically, the proposed rule would allow, through a request made in writing (via hard copy or email) to the Associate Register of Copyrights and Director of the Office of Public Information and Education, the removal of extraneous PII such as driver's license numbers, social security numbers, banking information, and credit card information inadvertently included on a copyright registration application, at no cost. Such a request must contain the name of the author and/or claimant of record, the registration number associated with the record, and a description of the extraneous PII that is to be removed. Once the Office receives the request it will act as expeditiously as possible to remove the extraneous PII from both its online and offline public records. The Office will not include any notation of this action in its records. The Office will also continue its informal practice of affirmatively removing or redacting extraneous PII from registration forms if it is found during and following the examination process, although this practice is not codified in the proposed rule.

    List of Subjects in 37 CFR Parts 201 and 204

    Copyright, Information, Privacy, Records.

    Proposed Regulations

    For the reasons set forth in the preamble, the U.S. Copyright Office proposes to amend parts 201 and 204 of 37 CFR chapter II as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read, in part, as follows: Authority:

    17 U.S.C. 702.

    2. In paragraph § 201.1, revise the section heading and add paragraph (c)(8) to read as follows:
    § 201.1 Communication with the Copyright Office.

    (c) * * *

    (8) Requests to remove PII from registration records. Requests to remove personally identifiable information from registration records pursuant to sections 201.2(e) and 201.2(f) should be addressed to: U.S. Copyright Office, Associate Register of Copyrights and Director of the Office of Public Information and Education, P.O. Box 70400, Washington, DC 20024-0400. Requests should be clearly labeled “Request to Remove Requested PII,” “Request for Reconsideration Following Denial of Request to Remove Requested PII,” or “Request to Remove Extraneous PII,” as appropriate.

    3. In § 201.2, add paragraphs (e) and (f) to read as follows:
    § 201.2 Information given by the Copyright Office.

    (e) Requests for removal of requested personally identifiable information from the online public catalog. (1) In general, an author, claimant of record, or the authorized representative of the author or claimant of record may submit a request to remove certain requested personally identifiable information (“PII”) related to a copyright registration from the Copyright Office's online public catalog by following the procedure set forth in paragraph (e)(3) of this section. Where the requester provides verifiable, non-personally-identifiable substitute information to replace the PII being removed, the Office will grant the request unless it determines that the need to maintain the original information in the public record substantially outweighs the safety, privacy, or other stated concern. If the requester does not provide verifiable, non-personally-identifiable substitute information, the Office will grant the request only if the safety, privacy, or other stated concern substantially outweighs the need for the information to remain in the public record. The Office will review requests by joint authors or claimants on a case-by-case basis.

    (2) Categories of personally identifiable information that may be removed from the online public catalog include home addresses, personal telephone and fax numbers, and personal email addresses, except that:

    (i) Requests for removal of driver's license numbers, social security numbers, banking information, credit card information and other extraneous PII covered by paragraph (f) of this section are governed by the provisions of that paragraph.

    (ii) Requests to remove the address of a copyright claimant must be accompanied by a verifiable substitute address.

    (iii) Names of authors or claimants may not be removed or replaced with a pseudonym.

    (3) Requests for removal of PII from the online catalog must be in the form of an affidavit, must be accompanied by the non-refundable fee listed in § 201.3(c), and must include the following information:

    (i) The copyright registration number(s).

    (ii) The name of the author and/or claimant of record on whose behalf the request is made.

    (iii) Identification of the specific PII that is to be removed.

    (iv) If applicable, verifiable non-personally-identifiable substitute information that should replace the PII to be removed.

    (v) A statement providing the reasons supporting the request. If the requester is not providing verifiable, non-personally-identifiable substitute information to replace the PII to be removed, this statement must explain in detail the specific threat to the individual's personal safety or personal security, or other circumstances, supporting the request.

    (vi) The statement, “I declare under penalty of perjury that the foregoing is true and correct.”

    (vii) If the submission is by an authorized representative of the author or claimant of record, an additional statement, “I am authorized to make this request on behalf of [name of author or claimant of record].”

    (viii) The signature of the author, claimant of record, or the authorized representative of the author or claimant of record.

    (ix) The date on which the request was signed.

    (x) A physical mailing address to which the Office's response may be sent (if no email is provided).

    (xi) A telephone number.

    (xii) An email address (if available).

    (4) Requests under this paragraph (e) must be mailed to the address listed in § 201.1(c).

    (5) A properly submitted request will be reviewed by the Associate Register of Copyrights and Director of the Office Public Information and Education or his or her designee(s) to determine whether the request should be granted or denied. The Office will mail its decision to either grant or deny the request to the address indicated in the request.

    (6) If the request is granted, the Office will remove the information from the online public catalog. Where substitute information has been provided, the Office will add that information to the online public catalog. In addition, a note indicating that the online record has been modified will be added to the online registration record. A new certificate of registration will be issued that reflects the modified information. The Office will maintain a copy of the original registration record on file in the Copyright Office, and such records shall be open to public inspection and copying pursuant to paragraphs (b), (c), and (d) of this section. The Office will also maintain in its offline records the correspondence related to the request to remove PII.

    (7) Requests for reconsideration of denied requests to remove PII from the online public catalog must be made in writing within 30 days from the date of the denial letter. The request for reconsideration, and a non-refundable fee in the amount specified in § 201.3(c), must be mailed to the address listed in § 201.1(c). The request must specifically address the grounds for denial of the initial request. Only one request for reconsideration will be considered per denial.

    (f) Requests for removal of extraneous PII from the public record. Upon written request, the Office will remove driver's license numbers, social security numbers, banking information, credit card information, and other extraneous PII that was erroneously included on a registration application from the public record. There is no fee for this service. To make a request, the author, claimant, or the authorized representative of the author or claimant, must submit the request in writing to the email address or mailing address listed in § 201.1(c). Such a request must name the author and/or claimant, provide the registration number(s) associated for the record in question, and give a description of the extraneous PII that is to be removed. Once the request is received, the Office will remove the extraneous information from both its online and offline public records. The Office will not include any notation of this action in its records.

    4. In § 201.3, add paragraph (c)(19) to read as follows:
    § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division.

    (c) * * *

    Registration, recordation and related services Fees
  • ($)
  • *         *         *         *         *         *         * (19) Removal of PII from Registration Records: (i) Initial request, per registration record 130 (ii) Reconsideration of denied requests, flat fee 60 *         *         *         *         *         *         *
    PART 204—PRIVACY ACT: POLICIES AND PROCEDURES 5. The authority citation for part 204 continues to read as follows: Authority:

    17 U.S.C. 702; 5 U.S.C. 552(a).

    6. Revise § 204.7 to read as follows:
    § 204.7 Request for correction or amendment of records.

    (a) Any individual may request the correction or amendment of a record pertaining to her or him. Requests for the removal of requested personally identifiable information related to a copyright registration are governed by § 201.2(e) of this chapter. Requests for the removal of extraneous personally identifiable information, such as driver's license numbers, social security numbers, banking information, and credit card information from registration records are governed by § 201.2(f) of this chapter. With respect to the correction or amendment of all other information contained in a copyright registration, the set of procedures and related fees are governed by 17 U.S.C. 408(d) and § 201.5 of this chapter. With respect to requests to amend any other record that an individual believes is incomplete, inaccurate, irrelevant or untimely, the request shall be in writing and delivered either by mail addressed to the U.S. Copyright Office, Supervisory Copyright Information Specialist, Copyright Information Section, Attn: Privacy Act Request, P.O. Box 70400, Washington, DC 20024-0400, or in person Monday through Friday between the hours of 8:30 a.m. and 5 p.m., eastern time, except legal holidays, at Room LM-401, Library of Congress, U.S. Copyright Office, 101 Independence Avenue SE., Washington, DC 20559-6000. The request shall explain why the individual believes the record to be incomplete, inaccurate, irrelevant, or untimely.

    (b) With respect to requests for the correction or amendment of records that are governed by this section, the Office will respond within 10 working days indicating to the requester that the requested correction or amendment has been made or that it has been refused. If the requested correction or amendment is refused, the Office's response will indicate the reason for the refusal and the procedure available to the individual to appeal the refusal.

    Dated: September 8, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2016-22011 Filed 9-14-16; 8:45 am] BILLING CODE 1410-30-P
    POSTAL REGULATORY COMMISSION 39 CFR Parts 3015 and 3060 [Docket No. RM2016-13] Changes to Attributable Costing AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Proposed rulemaking.

    SUMMARY:

    The Commission is issuing this proposed rulemaking which amends some existing rules concerning attributable costing. The primary purpose of this rulemaking is to make conforming changes to rules that specifically define or describe attributable costs, pursuant to Commission Order No. 3506. This notice informs the public of the docket's initiation, invites public comment, and takes other administrative steps.

    DATES:

    Comments are due on or before October 17, 2016.

    ADDRESSES:

    Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6820.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. Background III. Proposed Rules IV. Comments Requested V. Ordering Paragraphs I. Introduction

    The Commission initiates this rulemaking to request comments on proposed changes to title 39 of the Code of Federal Regulations (CFR) as they relate to attributable costs. The primary purpose of the rulemaking is to make conforming changes to rules that specifically define or describe attributable costs, pursuant to Commission Order No. 3506.1

    1 Docket No. RM2016-2, Order Concerning United Parcel Service, Inc.'s Proposed Changes to Postal Service Costing Methodologies (UPS Proposals One, Two, and Three), September 9, 2016 (Order No. 3506).

    II. Background

    In Docket No. RM2016-2, the Commission issued Order No. 3506 after consideration of a United Parcel Service, Inc. (UPS) Petition which sought to make changes to the methodologies employed by the Postal Service to account for the costs of its products in its periodic reports.2 In Proposal One, UPS recommended that the Postal Service calculate and attribute inframarginal costs to individual products in addition to the currently attributed volume-variable and product-specific fixed costs.3

    2 Docket No. RM2016-2, Petition of United Parcel Service, Inc. for the Initiation of Proceedings to Make Changes to Postal Service Costing Methodologies, October 8, 2015 (Petition).

    3 Petition, Proposal One at 1. Proposal Two dealt with reclassifying some fixed costs as fully or partially variable, and attributing those costs to products. See generally, Petition, Proposal Two at 1. UPS also filed a third proposal, which requested review of competitive products; share of institutional costs. Petition, Proposal Three at 1. In Order No. 2793, the Commission held consideration of Proposal Three in abeyance until the Commission completed its review of Proposals One and Two. Docket No. RM2016-2, Notice of Proposed Rulemaking on United Parcel Service, Inc.'s Proposed Changes to Postal Service Costing Methodologies (UPS Proposals One, Two, and Three), October 29, 2015, at 6-7 (Order No. 2793). It is the Commission's decision concerning Proposal One that initiated this proposed rulemaking.

    Section 3633(a)(2) (competitive rate regulation) requires the Commission to ensure that “each competitive product covers its costs attributable.” 39 U.S.C. 3633(a)(2); see also 39 CFR 3015.7(b).4 Section 3631(b) defines attributable cost as “the direct and indirect postal costs attributable to [ ] product[s] through reliably identified causal relationships.” 39 U.S.C. 3631(b).

    4 This Notice of Proposed Rulemaking sets forth amendments to 39 CFR part 3015, which implements 39 U.S.C. 3633. These proposed rules are conforming changes required by the Commission's action taken on the UPS Petition. See Order No. 3506 at 61-62, 123-124. (Adopting the use of incremental costs to calculate attributable cost). Uncodified section 703 of the Postal Accountability and Enhancement Act, Public Law 109-435, 120 Stat. 3198 (2006) requires that when promulgating new or revised regulations under section 3633, the Commission “shall take into account” Federal Trade Commission recommendations about the net economic effects of laws that apply to the United States Postal Service, and subsequent relevant events.

    However, the proposed rules in this instance do not trigger the requirement to consider the net economic effect because the rules are a conforming change required by law. Section 3622(c) requires that costs must be attributed when there is a reliably identified causal relationship that links costs to a class or type of mail service. See 39 U.S.C. 3622(c). In Order No. 3506, the Commission found that there were additional costs that satisfied the requirements of section 3622(c), and, therefore, must be attributed. See Order No. 3506 at 61-62. Pursuant to section 3622(c), these costs must therefore be attributed to all products, including competitive products. This change in attribution requires conforming changes in 39 CFR part 3015 that are identified in this Notice. Because the rule changes are required by law, any consideration of the “net economic effect” recommendations identified in uncodified section 703 would be moot. Additionally, the Commission discusses the inapplicability of uncodified section 703 to UPS Proposals One and Two in Order No. 3506. Order No. 3506 at 117-120.

    The Commission notes, notwithstanding uncodified section 703's applicability, that this change in attribution results in an improved, more complete, or more accurate measure of attributable costs as defined by section 3622(c), and represents an improvement in the attribution of costs as required by section 3652(e). See Order No. 3506 at 122 n.152. The conforming changes identified in this Notice facilitate improved attribution and therefore reduce potential economic distortions.

    Additionally, under section 3622 (market dominant rate and class regulation), a product's ability to cover its attributable costs is a factor to be considered when regulating rates for market dominant products and includes the same terminology, that postal costs should be attributed through reliably identified causal relationships, found in sections 3631(b). 39 U.S.C. 3622(c)(2).

    Therefore, title 39 introduces the concept of attributable costs and describes the role they play in the regulation of both market dominant and competitive products. For competitive products, coverage of attributable costs is a requirement in regulating competitive product rates; for market dominant products, it is only one of many factors the Commission considers when regulating market dominant rates. See 39 U.S.C. 3633(a)(2); 39 CFR 3015.7(b); 39 U.S.C. 3622(c).

    Historically, volume-variable costs and product-specific costs together totaled attributable costs, as the Commission found both volume-variable and product-specific costs are reliably identifiable and causally related to products pursuant to statute.5 All other costs are currently classified as institutional and are not attributed to specific products. Order No. 3506 at 10. Institutional costs include common fixed costs and inframarginal costs. Id. Inframarginal costs are variable costs that do not vary directly with volume. Id. (emphasis added).

    5 Docket No. R74-1, Chief Administrative Law Judge's Initial Decision on Postal Rate and Fee Increases Volume I, May 28, 1975, at 76. See generally at id. at 76-145; see also Summary Description of USPS Development of Costs by Segments and Components, Fiscal Year 2015, July 6, 2016, “PREF-15” at i; Appendix H, at H-1; Docket No. R83-1, Opinion and Recommended Decision on E-COM Rate and Classification Changes, February 24, 1984, at 186.

    While the Commission found that inframarginal costs are causally related to products, it determined inframarginal costs cannot be reliably identified, which is a necessary component of cost attribution. Order No. 3506 at 56. However, the Commission found that a portion of inframarginal costs (those inframarginal costs calculated as part of a product's incremental cost) are reliably identifiable and can be linked to products. Order No. 3506 at 61. Therefore, pursuant to Order No. 3506, attributable costs must also include those inframarginal costs calculated as part of a competitive product's incremental costs (in addition to a product's volume-variable costs and product-specific fixed costs). It is this change in the description of attributable costs that requires clarification of some attributable cost references in title 39 of the CFR.

    III. Proposed Rules

    The rules requiring conforming or clarifying changes in this notice of proposed rulemaking are §§ 3015.7, 3060.10, and 3060.21.

    Proposed § 3015.7(a) provides that when incremental cost data are unavailable to test for cross-subsidies by market dominant products, the Commission will use volume-variable costs and product-specific costs, as well as causally related, group-specific costs, to test for cross-subsidies. This proposed section removes the “attributable costs” phrase currently described as the alternative test when incremental costs are not available. The proposed rule is intended to provide a refined explanation of the alternative test for cross-subsidization by market dominant products after the Commission found in Order No. 3506 that some incremental costs (those inframarginal costs calculated as part of a competitive product's incremental costs) should be included as part of attributable costs. Order No. 3506 at 61-62, 123-124.

    Proposed § 3015.7(b) includes the updated description of attributable costs to include those inframarginal costs calculated as part of a competitive product's incremental costs, as well as volume-variable costs and product-specific costs. Order No. 3506 at 62. The proposed rule is intended to provide a clear description of which costs should be attributed to competitive products pursuant to the Commission's findings in Order No. 3506. In addition, proposed rule § 3015.7(b) signifies these three costs not only comply with the description of attributable costs found in 39 U.S.C. 3631(b), but are the costs relevant to the Commission's evaluation of the Postal Service's compliance with part 3015.

    Proposed §§ 3060.10(a) and 3060.21 both make conforming changes to the description of attributable costs, in each section, to include those inframarginal costs calculated as part of a competitive product's incremental costs, along with volume-variable costs and product-specific costs pursuant to Order No. 3506.

    While no other rules in title 39 require revisions as a result of the Commission's Order No. 3506, the Commission's findings concerning the use a product's incremental costs (the sum of volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a product's incremental costs) to calculate attributable costs applies to any reference of attributable costs in title 39 unless otherwise indicated by the rules. See generally Order No. 3506.

    IV. Comments Requested

    Interested persons are invited to provide written comments concerning the proposed rule. Comments are due no later than 30 days after the date of publication of this notice in the Federal Register. All comments and suggestions received will be available for review on the Commission's Web site, http://www.prc.gov.

    Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in the above-captioned docket.

    V. Ordering Paragraphs

    It is ordered:

    1. Docket No. RM2016-13 is established for the purpose of receiving comments on the proposed change to parts 3015 and 3060, as discussed in this order.

    2. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the Federal Register.

    3. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as the Public Representative in this proceeding.

    4. The Secretary shall arrange for publication of this order in the Federal Register.

    By the Commission.

    Stacy L. Ruble, Secretary.
    List of Subjects 39 CFR Part 3015

    Administrative practice and procedure, Postal Service.

    39 CFR Part 3060

    Administrative practice and procedure, Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows:

    PART 3015—REGULATION OF RATES FOR COMPETITIVE PRODUCTS 1. The authority citation of part 3015 continues to read as follows: Authority:

    39 U.S.C. 503; 3633.

    2. Amend § 3015.7 by revising paragraph (a) and (b) to read as follows:
    § 3015.7 Standards for compliance.

    (a) Incremental costs will be used to test for cross-subsidies by market dominant products of competitive products. To the extent that incremental cost data are unavailable, the Commission will use the sum of competitive products' volume-variable costs and product-specific costs supplemented to include causally related, group-specific costs to test for cross-subsidies.

    (b) Each competitive product must recover its attributable costs as defined in 39 U.S.C. 3631(b). Pursuant to 39 U.S.C. 3631(b), the Commission will use a competitive product's incremental costs, which is the sum of volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a competitive product's incremental costs, to calculate attributable costs.

    PART 3060—ACCOUNTING PRACTICES AND TAX RULES FOR THE THEORETICAL COMPETITIVE PRODUCTS ENTERPRISE 3. The authority citation of part 3060 continues to read as follows: Authority:

    39 U.S.C. 503; 2011, 3633, 3634.

    4. Amend § 3060.10 by revising paragraph (b)(1) to read as follows:
    § 3060.10 Costing.

    (b) * * *

    (1) Attributable costs, including volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a competitive product's incremental costs; and

    (2) * * *

    5. Amend § 3060.21 by revising Table 1—Competitive Products Income Statement—PRC Form CP-01 to read as follows:
    § 3060.21 Income report. Table 1—Competitive Products Income Statement—PRC Form CP-01 [$ in 000s] FY 20xx FY 20xx-1 Percent change
  • from
  • SPLY
  • Percent change
  • from
  • SPLY
  • Revenue: $x,xxx $x,xxx xxx xx.x (1) Mail and Services Revenues xxx xxx xx xx.x (2) Investment Income x,xx x,xxx xxx xx.x (3) Total Competitive Products Revenue Expenses: x,xxx (4) Volume-Variable Costs x,xxx x,xxx xxx xx.x (5) Product Specific Costs x,xxx x,xxx xxx xx.x (6) Incremental Inframarginal Costs x,xxx x,xxx xxx xx.x (7) Total Competitive Products Attributable Costs x,xxx x,xxx xxx xx.x (8) Net Income Before Institutional Cost Contribution x,xxx x,xxx xxx (9) Required Institutional Cost Contribution x,xxx x,xxx $xxx x.x.x (10) Net Income (Loss) Before Tax x,xxx x,xxx $xxx xx.x (11) Assumed Federal Income Tax x,xxx x,xxx $xxx xx.x (12) Net Income (Loss) After Tax x,xxx x,xxx $xxx xx.x Line (1): Total revenues from Competitive Products volumes and Ancillary Services. Line (2): Income provided from investment of surplus Competitive Products revenues. Line (3): Sum total of revenues from Competitive Products volumes, services, and investments. Line (4): Total Competitive Products volume-variable costs as shown in the Cost and Revenue Analysis (CRA) report. Line (5): Total Competitive Products product-specific costs as shown in the CRA report. Line (6): Inframarginal costs calculated as part of total Competitive Products incremental costs. Line (7): Sum total of Competitive Products costs (sum of lines 4, 5, and 6). Line (8): Difference between Competitive Products total revenues and attributable costs (line 3 less line 6). Line (9): Minimum amount of Institutional cost contribution required under 39 CFR 3015.7 of this chapter. Line (10): Line 8 less line 9. Line (11): Total assumed Federal income tax as calculated under 39 CFR 3060.40. Line (12): Line 10 less line 11.
    [FR Doc. 2016-22162 Filed 9-14-16; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2016-0478; FRL-9952-49-Region 2] Approval and Promulgation of Implementation Plans; New York Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review; Infrastructure State Implementation Plan Requirements AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the New York State Implementation Plan (SIP) amending existing nonattainment New Source Review (NNSR) and attainment New Source Review (Prevention of Significant Deterioration of Air Quality, PSD) program requirements. Specifically, the SIP revision includes new requirements pertaining to the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometer (PM2.5) and the regulation of Greenhouse Gases (GHGs) under New York's Part 231, “New Source Review for New and Modified Facilities;” Part 201, “Permits and Registrations;” and amendments to Part 200, “General Provisions,” of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) which will make the SIP consistent with existing federal requirements. The EPA is also proposing to approve certain elements of New York SIP revisions submitted to demonstrate that the State meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, and 2010 sulfur dioxide (SO2) national ambient air quality standards (NAAQS).

    DATES:

    Comments must be received on or before October 17, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID number EPA-R02-OAR-2016-0478, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Frank Jon, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4085; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, references to “EPA,” “we,” “us,” or “our,” are intended to mean the Environmental Protection Agency. The supplementary information is arranged as follows:

    I. What is being addressed in this document? II. What is the background for this action? III. What is EPA's analysis of New York's NSR rule revisions? IV. How has the State addressed elements of the Section 110(a)(1) and (2) “infrastructure” provisions? V. What action is EPA proposing to take? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews. I. What is being addressed in this document?

    On October 12, 2011, the New York State Department of Environmental Conservation (NYSDEC) submitted to EPA Region 2 a new set of revisions to the New York State Implementation Plan (SIP). This submittal consists of revisions to Title 6 of the New York Code of Rules and Regulations (6 NYCRR) Part 231, New Source Review for New and Modified Facilities; 6 NYCRR Part 200, General Provisions; and 6 NYCRR Part 201, Permits and Certificates. New York undertook this rulemaking to comply with EPA's May 16, 2008 NSR final rule for the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5). Also, the revisions implement EPA's October 20, 2010 final rule that establishes the PM2.5 increments, significant impact levels, and significant monitoring concentrations. This proposed rulemaking implements PM2.5 provisions that were not previously included in the November 17, 2010 EPA SIP approval of Part 231. This SIP revision also incorporates provisions that conform to EPA's June 3, 2010 final rule for Greenhouse Gases (GHGs) under its PSD and Title V programs, establishing major source applicability threshold levels for GHG emissions and other conforming changes such as the establishment of global warming potential values for calculating CO2 equivalents under New York's PSD and Title V programs.

    The EPA is also proposing to approve certain elements of New York SIP revisions as meeting CAA section 110(a) requirements for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. NYSDEC submitted a SIP for the 2008 Pb NAAQS on October 13, 2011, as supplemented on February 24, 2012; for the 2008 ozone NAAQS on April 4, 2013; and for the 2010 SO2 NAAQS on October 3, 2013.

    II. What is the background for this action?

    On November 17, 2010, EPA granted a partial approval to revisions of the New York SIP for 6 NYCRR Parts 200, 201 and Part 231 submitted by the NYSDEC on March 3, 2009. 75 FR 70140. This partial approval was issued with the caveat that EPA was taking no action at the time on (1) the PSD permitting threshold provisions to the extent that those provisions may require permits for sources of GHG emissions that equal or exceed the 100/250 tons per year (tpy) GHG levels but are less than the thresholds identified in EPA's final Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and (2) the PSD significance level provisions of New York's rule to the extent that those provisions may treat as significant GHG emissions increases that are less than the thresholds identified in the final Tailoring Rule. Id. We granted partial approval, in part, because in its August 11, 2010 letter to EPA, New York State confirmed to us that they have authority to regulate GHGs without any additional rulemaking or other administrative action. Subsequently, on October 12, 2011 New York submitted a SIP revision request which makes New York's authority to regulate GHG more explicit in the regulation itself. In addition, New York's SIP revision request addresses additional PM2.5 requirements that were not included in the November 17, 2010 EPA SIP approval.

    Under CAA sections 110(a)(1) and (2), states are required to submit SIPs that provide for the implementation, maintenance and enforcement of the NAAQS. The EPA refers to these types of SIP submissions as the “infrastructure” SIPs. States must make infrastructure SIP submissions within 3 years after the promulgation of a new or revised NAAQS. On November 12, 2008 (73 FR 66964), EPA promulgated a new rolling 3-month average NAAQS for Pb, which is 0.15 micrograms per cubic meter of air (µg/m3) maximum not to be exceeded. On March 27, 2008 (73 FR 16436), EPA revised the level of the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for SO2 at a level of 75 ppb, based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations.

    This proposed action pertains only to the portions of the infrastructure SIPs submitted for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQs pertaining to CAA sections 110(a)(2)(C); 110(a)(2)(D)(i)(II) prong 3 (PSD); and 110(a)(2)(J). EPA had previously approved most elements of New York's infrastructure SIP for the 2008 Pb NAAQS as fully meeting the requirements of section 110(a). See, EPA's final rule “Approval and Promulgation of Implementation Plans; New York; Infrastructure SIP for the 2008 Lead NAAQS,” 80 FR 30939 (June 1, 2015). However, EPA had deferred taking final action on the lead SIP with respect to 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J) elements until EPA approved, or simultaneously approved, PM2.5 requirements for New York's PSD program. EPA will address the other elements of the infrastructure SIPs for the 2008 ozone, and 2010 SO2 NAAQs in another action.

    EPA's general approach to the review of infrastructure SIP submittals can be found in the December 15, 2014 (79 FR 74046) proposal to approve New York's 2008 Pb infrastructure SIP, and will not be repeated here. Both the proposed rule and final rules for the 2008 Pb NAAQS can also be found in the docket of this rulemaking.

    III. What is EPA's analysis of New York's NSR rule revisions?

    A number of developments have arisen since EPA's receipt of the SIP revision package that has affected EPA's review of the 6 NYCRR Part 231 SIP revision. These developments are:

    (a) On July 21, 2011, then Assistant Administrator Gina McCarthy issued a memorandum entitled “Revised Policy to Address Reconsideration of Interpollutant Trading Provisions for Fine Particles (PM2.5).” See http://www.epa.gov/sites/production/files/2015-07/documents/pm25trade.pdf. The memorandum stated that under the EPA's revised policy, the interpollutant ratios contained in the preamble to the 2008 final rule will no longer carry an EPA presumptive approval status. Accordingly, if a state wishes to implement interpollutant trading, the state will be expected to develop its own separate PM2.5 precursor offset ratios that are demonstrated to be suitable for addressing the particular precursor's relationship with ambient PM2.5 concentrations for 24-hour and annual averaging periods that are causing violations in that nonattainment area. Therefore, since New York has not conducted and included such a demonstration for the PM2.5 precursor offset ratios in the Part 231 SIP submittal, these offset ratios cannot presumptively be approved into the SIP.

    (b) On January 22, 2013, the United States Court of Appeals for the District of Columbia granted an EPA request to vacate and remand to the EPA portions of two PSD regulations, promulgated in 2010. These two regulatory provisions are the Significant Impact Levels (SILs) for PM2.5 promulgated under 40 CFR 52.21(k)(2) and 40 CFR 51.166(k)(2) and the PM2.5 Significant Monitoring Concentration (SMC) promulgated under 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 51.166(i)(5)(i)(c). On December 9, 2013, the EPA issued a final rule vacating these two elements and subsequently issued interim guidance on May 20, 2014 entitled “Guidance for PM2.5 Permit Modeling.” See http://www3.epa.gov/ttn/scram/guidance/guide/Guidance_for_PM25_Permit_Modeling.pdf. The EPA is currently drafting regulatory changes to address these two aspects of the PSD rule.

    (c) On June 23, 2014, the Supreme Court of the United States issued a decision addressing the application of stationary source permitting requirements to greenhouse gases. Utility Air Regulatory Group (UARG) v. Environmental Protection Agency, 134 S.Ct. 2427 (2014) In this decision, the Supreme Court said that the EPA may not treat greenhouse gases as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD or title V permit. The Supreme Court also said that the EPA could continue to require that PSD permits otherwise required, based on emissions of conventional pollutants, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). See the EPA guidance dated December 19, 2014 on this topic at http://www.epa.gov/sites/production/files/2015-07/documents/201412step2.pdf.

    In light of the above developments, the NYSDEC on July 28, 2016 requested the EPA to withdraw specific regulatory language that deals with the above provisions from the SIP submittal. Removal of the above provisions from the SIP submittal request is appropriate since EPA has or is in the process of developing additional guidance/regulations that will address the above issues with a timetable as to when the SIP revisions are due from the States to EPA. The specific provisions of 6 NYCRR Parts 201 and 231 that New York has asked the EPA to be withdrawn are:

    EP15SE16.007 EP15SE16.008 IV. How has the state addressed elements of the CAA Section 110(a)(1) and (2) “infrastructure” provisions?

    New York's submittals demonstrate how the State, where applicable, has a plan in place that meets the requirements of CAA Section 110 for certain elements for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. The plans reference the current New York SIP, the New York Codes of Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public Officer's Law (POL). The NYCRR, ECL and POL referenced in the submittal are publicly available. New York's SIP can be found at 40 CFR 52.1670 and is posted on the Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.

    As discussed in the following sections, EPA has reviewed and evaluated elements and sub-elements of New York's Infrastructure SIPs for 2008 Pb, 2008 Ozone, and 2010 SO2 for CAA Section 110(a)(2)(C); 110 (a)(2)(D)(i)(II) [PSD (Prong 3)]; and 110(a)(2)(J).

    Element 110(a)(2)(C): Program for Enforcement of Control Measures

    Section 110(a)(2)(C) requires states to have a plan that includes a program providing for enforcement of all SIP measures and the regulation of the modification and construction of any stationary source, including a program to meet PSD of Air Quality and minor source new source review.

    New York's Infrastructure SIP submittals for 2008 Pb, 2008 ozone and 2010 SO2 NAAQS reference New York's Environmental Conservation Law (ECL) § 19-0305, which provides New York with the authority for the enforcement of all control measures that have been adopted into the SIP. New York also references the State's PSD and Nonattainment New Source Review (NNSR) permitting program contained in 6 NYCRR Part 231, “New Source Review for New and Modified Facilities,” and the State's permitting program contained in 6 NYCRR 201, “Permits and Certificates.” EPA approved New York's PSD and NNSR program into the SIP on November 17, 2010 (75 FR 70140). New York's minor new source review program is also regulated under Part 201.

    EPA has reviewed and evaluated New York's Infrastructure SIP for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS with respect to the requirements of element C.

    EPA concludes that the State has adequate authority and regulations to ensure that SIP-approved control measures are enforced for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. Under § 19-0311 of the ECL, New York has the authority to establish a permitting program. New York's SIP-approved program under Part 231 includes both PSD permitting requirements, which regulate major sources in attainment areas, and Nonattainment New Source Review requirements, which regulate major sources located in nonattainment areas. New York's Part 231 includes permitting requirements for Pb, SO2 and the precursors of ozone (i.e., nitrogen oxides and volatile organic compounds). New York's permitting regulations are set forth in 6 NYCRR Part 201, “Permits and Certificates.” Major sources of air pollution are covered by State Facility permits (Subpart 201-5) and Title V permits (Subpart 201- 6). In addition, New York has implemented a permitting program for minor sources of air pollution; these sources are covered by minor facility registrations (6 NYCRR Subpart 201-4).

    New York's program ensures that all applicable PSD requirements are included in PSD permits and are incorporated into title V operating permits, and that all federally-enforceable requirements are applied and enforced. The State's PSD permitting requirements in Part 231 regulate Pb, SO2, and the precursors of ozone. The PSD portion of Part 231 regulates the construction of proposed new or modified facilities that are required to demonstrate in their permit application that allowable emission increases from the facilities, in conjunction with all other applicable emission increases or reductions (including secondary emissions), would not, among other things, cause or significantly contribute to air pollution in violation of any NAAQS or increment in any air quality control region. Since Pb, SO2, and ozone are NAAQS, the PSD provisions of Part 231 are applicable.

    Section 110(a)(2)(C) is applicable to all NSR pollutants subject to regulation under the CAA. See, e.g., CAA section 165(a)(4). As mentioned in section II, above, and as further described in EPA's final rule approving elements of the New York Lead Infrastructure SIP,1 EPA had deferred taking final action approving 110(a)(2)(C) (as well as 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J)) until EPA approved, or simultaneously approved, PM2.5 requirements for New York's PSD program. Because the scope of 110(a)(2)(C) is comprehensive (covering all pollutants subject to regulation under the CAA, including GHG), a fully approved comprehensive PSD program addressing all regulated NSR pollutants is needed in order to approve the infrastructure SIP for any one pollutant. As described in section III of this rulemaking, the NYSDEC has requested to withdraw specific language from its SIP submittal that had affected EPA's review of the 6 NYCRR Part 231 SIP revision. Upon final approval of the revisions to 6 NYCRR Part 231 into the SIP, New York will have addressed all regulated pollutants.

    1 80 FR 30939 (June 1, 2015).

    EPA proposes to find that the State has adequate authority and regulations to ensure the enforcement of emission limits and control measures for the 2008 Pb, 2010 SO2 and 2008 ozone NAAQS. EPA also proposes to find that New York has met the requirements of 110(a)(2)(C) regarding regulation of minor sources and minor modifications for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS.

    Sub-Element 110(a)(2)(D)(i)(II) Prong 3: Interstate Transport, PSD

    Section 110(a)(2)(D) of the Clean Air Act is divided into two subsections: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn, contains four “prongs” the first two of which appear in 110(a)(2)(D)(i)(I) and the second two of which appear in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) require New York's SIP to contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in any other state with respect to any primary or secondary NAAQS (prong 1), or interfere with maintenance by any other state with respect to any primary or secondary NAAQS (prong 2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuring compliance with sections 115 and 126 of the CAA, relating to interstate and international pollution abatement.

    In this action, EPA is proposing to approve 110(a)(2)(D)(i)(II)(prong 3) for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. EPA has previously taken action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for 2008 Pb. EPA has proposed action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2008 ozone NAAQS, and will finalize in a separate rulemaking. EPA will also address 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2010 SO2 NAAQS in a separate rulemaking.

    To satisfy section 110(a)(2)(D)(i)(II), prong 3, New York relies on its PSD program to prevent significant deterioration of air quality within other states. New York has affirmed that the program remains in effect and continues to apply for 2008 Pb, 2008 ozone, and 2010 SO2.

    As discussed in the preceding section regarding 110(a)(2)(C), a state's PSD program must address all pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants.

    Element 110(a)(2)(J) Consultation With Government Officials, Public Notification, PSD, and Visibility

    Section 110(a)(2)(J) requires states to have a plan that meets the applicable requirements of CAA section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to significant deterioration and visibility protection).

    Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 relating to consultation. In December 2006, New York established a SIP Coordinating Council consisting of senior policy representatives from 19 state agencies and authorities, as well as a SIP Task Force consisting of officials from 37 local governments and designated organizations of elected officials. New York has also participated in the consultation process for Regional Haze (40 CFR 51.308). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for consultation with government officials for 2008 Pb, 2008 ozone, and 2010 SO2.

    Section 110(a)(2)(J) further requires states to notify the public if the NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. New York maintains an Air Quality Web site 2 for reporting daily air quality to the public, including current air quality status, air quality forecasts, monitoring information, reports and pollutant health effects related to air quality readings. New York posts warnings on the above-referenced Web site and issues press releases to local media outlets if dangerous conditions are expected to occur. In the case of a predicted or forecasted air quality exceedance, the public is urged to follow energy-saving and pollution-reducing steps such as limiting the use of appliances and carpooling. EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for public notification for 2008 Pb, 2008 ozone, and 2010 SO2.

    2http://www.dec.ny.gov/chemical/34985.html.

    Section 110(a)(2)(J) also requires states to meet applicable requirements of Part C related to PSD and visibility protection. The approvability of a state's PSD program in its entirety is essential to approvability of the PSD portion of this element. As discussed previously concerning approvability of 110(a)(2)(C) and 110(a)(2)(D)(i)(II) prong 3, a state's PSD program must address all NSR pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants for PSD. With respect to the visibility component of 110(a)(2)(J), EPA believes that the visibility protection requirements are not “applicable requirements” within the meaning of section 110(a)(2)(J) and that the SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these NAAQS. Regardless, New York submitted and EPA approved New York's Regional Haze SIP. 77 FR 51915 (Aug. 28, 2012). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J), for PSD, for 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS.

    V. What action is EPA proposing to take?

    As requested by New York, EPA is proposing to withdraw the above specified regulatory sections of 6 NYCRR Parts 201 and 231 from EPA's review of the SIP submittal. EPA is proposing to approve into the SIP the remaining revisions to 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231 which became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011. Specifically, EPA is proposing to approve the remaining revisions of subparts 200.1 and 200.9, as effective on October 15, 2011, and subpart 201-2, as effective October 15, 2011. EPA is also proposing to approve the remaining revisions to 6 NYCRR Part 231, as effective on October 15, 2011.

    EPA is also proposing to approve New York's infrastructure SIP submittals for 2008 Pb, 2008 ozone, and 2010 SO2 for 110(a)(2) elements and sub-elements, as follows: 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J).

    VI. Incorporation by Reference

    In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference revised versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231, which were discussed in section III above, and became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011.

    The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    VII. 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 CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

    In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 6, 2016. Judith A. Enck, Regional Administrator, Region 2.
    [FR Doc. 2016-22238 Filed 9-14-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R8-ES-2016-0078; 4500030113] RIN 1018-BB64 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Chorizanthe parryi var. fernandina (San Fernando Valley Spineflower) AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list Chorizanthe parryi var. fernandina (San Fernando Valley spineflower), a plant species from southern California, as a threatened species under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. This document also serves as the 90-day and 12-month findings on two petitions to list C. parryi var. fernandina as an endangered species.

    DATES:

    We will accept comments received or postmarked on or before November 14, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by October 31, 2016.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2016-0078, which is the docket number for this rulemaking. Then click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2016-0078, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Stephen P. Henry, Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93001; telephone 805-644-1766; facsimile 805-644-3958. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

    (1) Chorizanthe parryi var. fernandina's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the plant

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the plant, its habitat, or both.

    (2) Factors that may affect the continued existence of the plant, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this plant and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of Chorizanthe parryi var. fernandina, including the locations of any additional populations of this plant.

    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. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) 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 comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described above in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified above in DATES. Such requests must be sent to the address shown above in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking the expert opinions of six appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in making this determination—including information on taxonomy, life history, ecology, population distribution and abundance, and potential threats—is presented in the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) Species Report (Species Report) available at http://regulations.gov under Docket No. FWS-R8-ES-2016-0078. A summary of this analysis is found in this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in C. parryi var. fernandina's biology, habitat, physical or biological factors, or threats, and their review of the Species Report will inform our final determination. We invite comment from the peer reviewers during this public comment period.

    Previous Federal Action

    We designated Chorizanthe parryi var. fernandina as a candidate species for listing in the October 25, 1999, candidate notice of review (CNOR) (64 FR 57534) based on its discovery along the southern rim of Laskey Mesa and within the footprint of the proposed Ahmanson Ranch project site in southeastern Ventura County, California (Glenn Lukos and Associates (GLA) 2000, p. 1). Prior to its rediscovery in 1999, C. parryi var. fernandina was not seen for a period of 70 years (1929-1999); it was last collected in 1929, near Castaic in Los Angeles County (Reveal and Hardham 1989, p. 149) and was presumed extinct by the botanical community. We gave C. parryi var. fernandina a listing priority number (LPN) of 3, which denotes a subspecies or variety facing an imminent threat of high magnitude and low recovery potential.

    On December 6, 1999, and January 27, 2000, we received petitions from the City of Calabasas and from the Santa Monica Mountains Conservancy (SMMC), respectively, to list the plant under the Act as an endangered species. In 2000, Chorizanthe parryi var. fernandina was discovered near Santa Clarita in Los Angeles County, California, on land owned by the Newhall Land and Farming Company (Newhall Land Company) within the footprint of the proposed Newhall Ranch development project. Because C. parryi var. fernandina was already a candidate, we did not conduct either a 90-day or 12-month finding for the species following receipt of the petitions. This document constitutes our proposed rule to list C. parryi var. fernandina as a threatened species, as well as both our 90-day and 12-month findings on the petitions to list C. parryi var. fernandina.

    In the May 4, 2004, CNOR (69 FR 24876), we changed the LPN for Chorizanthe parryi var. fernandina from 3 to 6 because we determined that impacts associated with habitat destruction or modification at Laskey Mesa had decreased. The proposed development of Ahmanson Ranch at the Laskey Mesa site did not move forward as previously proposed. This site was purchased by the State of California in 2003, and became part of the Upper Las Virgenes Canyon Open Space Preserve. An LPN of 6 denotes a subspecies or variety facing a nonimminent threat of high magnitude and low recovery potential. C. parryi var. fernandina has been included, with an LPN of 6, in all subsequent CNORs (70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015).

    Chorizanthe parryi var. fernandina was one of many taxa included in our May 10, 2011, multiyear work plan filed as part of a proposed settlement agreement with Wild Earth Guardians and others in a consolidated case in the U.S. District Court for the District of Columbia challenging our failure to make listing determinations for candidate species (Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (“MDL Litigation”), Document 31-1 (D. DC May 10, 2011) (“MDL Settlement Agreement”)). On September 9, 2011, the court accepted our agreement with plaintiffs on a schedule to publish proposed rules or not-warranted findings for the 251 species designated as candidates in 2010 (including C. parryi var. fernandina) no later than September 30, 2016.

    Background

    A thorough review of the taxonomy, life history, ecology, population distribution and abundance, and land ownership of Chorizanthe parryi var. fernandina is presented in the Species Report (Service 2016, pp. 7-20), available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078; a summary of this information is presented below. We used data specific to C. parryi var. fernandina when available.

    Physical and Biological Characteristics

    Chorizanthe parryi var. fernandina is a low-growing herbaceous annual plant in the Polygonaceae (buckwheat) family and is typical of many winter-spring native annuals that occur in the Mediterranean climate of California. Historical records show that C. parryi var. fernandina was found in washes and sandy areas, in the hills and on mesas, generally around the foothills of the San Gabriel Mountains and near Santa Ana in Orange County (Reveal 1989, p. 402; CDFG 2002, p. 12). The probable vegetation in these areas is a type of alluvial scrub called Riversidean alluvial fan sage scrub (Holland, 1986, p. 11; Sawyer et al. 2009, pp. 389-391). Currently, C. parryi var. fernandina is a plant of open habitats, predominately found within openings of sparsely vegetated scrub communities and grasslands, and in the transition zone between these two communities (Dudek 2010a, p. 21; Sapphos 2001, p. 5-13). C. parryi var. fernandina occurs primarily in areas of poorly developed soils, mostly in loam or silty clay loam with a much lower level of occurrence on sandy loams, and with shallow depth to bedrock and compacted soils. The conditions under which C. parryi var. fernandina persists are most likely due to decreased competition from native and nonnative plants, as it occurs in areas where other plants cannot become established (Sapphos 2001, p. 5-13; GLA 2000, p. 18; Dudek 2010a, p. 23).

    Chorizanthe parryi var. fernandina adapted a generalist pollination strategy. The presence of smaller pollinator species (i.e., native ants) and larger, more mobile pollinators (i.e., honeybees (Apis mellifera)) facilitates overall reproductive success (Jones et al. 2009, p. 39). Seeds of C. parryi var. fernandina are small, possess no morphological modifications for wind or animal dispersal, and remain in the involucre even after the plant disarticulates (Sapphos 2001, p. 3-5). Small mammals, along with native ants (e.g., harvester ants (Pogonomyrmex or Messor spp.)), may play a role in seed dispersal (CBI 2000, p. 3). In addition, bioturbation (reworking of soils and sediments by animals or plants) and bare soil patches related to rodent activity have been associated with C. parryi var. fernandina (GLA 2000, p. 18; CBI 2000, p. 7).

    The genetic characteristics of Chorizanthe parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research of the plant's genetic structure (Dudek 2015, p. 2; Dudek 2016c, p. 9). As of January 2016, all field collection is complete and the study is ongoing (D. Rodgers 2016, pers. comm.).

    Historical Abundance and Distribution

    Historically, Chorizanthe parryi var. fernandina was known from no fewer than 10 locations in Los Angeles and Orange Counties (CDFG 2002, p. 14) (see Figure 1, below). The species was last collected in 1929, was not seen for 70 years (1929-1999), and was presumed extinct by the botanical community because C. parryi var. fernandina was extirpated from all of the areas where it was originally collected (Reveal and Hardham 1989, p. 149). The majority of the historical collections of C. parryi var. fernandina from the greater Los Angeles metropolitan area were made in areas where urban, agricultural, and industrial development have replaced native habitats. Numerous field botanists have tried to rediscover it, but all efforts have been unsuccessful (Reveal and Hardham 1989, p. 149).

    In 1999, Chorizanthe parryi var. fernandina was discovered along the southern rim of Laskey Mesa within the footprint of the proposed Ahmanson Ranch development project in southeastern Ventura County, California (GLA 2000, p. 1); this was the only known extant population of this plant. The area occupied by C. parryi var. fernandina in 1999 was estimated to be approximately 6 acres (ac) (2.4 hectares (ha)), comprised of approximately 23,000 plants (GLA 2000, pp. 6-9). The potential threats to the C. parryi var. fernandina population at this site were reduced in 2003, when the Ahmanson Ranch project did not occur as planned and the State of California purchased the property. However, due to historical land uses at this site, the population has been impacted by loss of habitat and invasive, nonnative grasses.

    In 2000, Chorizanthe parryi var. fernandina was discovered near Santa Clarita in Los Angeles County, California, on land owned by Newhall Land Company. The 2000 survey data did not include population estimates. This population is within the footprint of the proposed Newhall Ranch development project.

    EP15SE16.000 Current Abundance and Distribution

    Chorizanthe parryi var. fernandina currently occupies up to a total of 35 to 40 ac (14 to 16 ha) from two populations in Southern California that are 17 miles (mi) (27 kilometers (km)) apart (see Figure 1, above). The Laskey Mesa population is in Ventura County, California, within the Upper Las Virgenes Canyon Open Space Preserve on land owned by the SMMC and the Mountains Recreation Conservation Authority (MRCA) (L.A. Mountains 2015; Newhall Land Company 2015, p. 8; MRCA 2015; SMMC 2015). The Santa Clarita population is in Los Angeles County on land owned by Newhall Land Company (Dudek 2010a, pp. 16-17). The Laskey Mesa population currently occupies approximately 15-20 ac (6.1-8.1 ha) (GLA 2000, p. 6; Sapphos 2001, p. 5-2; Sapphos 2003a, p. 3; Cooper 2015, pp. 8-10); the Santa Clarita population currently occupies approximately 20 ac (8.2 ha) (Dudek 2010a, p. 63).

    Comparing annual numbers of Chorizanthe parryi var. fernandina individuals over time is complicated because: (1) Different methodologies and levels of effort have been used to estimate population numbers across both extant populations during survey efforts since 1999; and (2) as is typical of many annual plants, C. parryi var. fernandina shows inter-annual variation in abundance by several orders of magnitude, ranging from hundreds to millions of individuals. Therefore, occupied area or distribution of the populations is an appropriate surrogate measure for plant population size.

    Because of the fluctuation in occupied area and population numbers and the different methodologies used to conduct surveys, we are not able to determine if the population is stable or increasing or decreasing at this time. The area occupied by Chorizanthe parryi var. fernandina at Laskey Mesa when it was discovered in 1999 was approximately 6 ac (2.4 ha), was up to 19 ac (7.7 ha) in 2003, and was estimated to be approximately 14 ac (5.7 ha) in 2015. The occupied area that was mapped in 2003 appears to have declined overall, though there were areas of expansion (GLA 2000, p. 6; Sapphos 2001, p. 5-2; Sapphos 2003a, p. 3; Cooper 2015, p. 10). The Laskey Mesa population occurs over an area approximately 1 mi (1.6 km) from east to west, and 0.5 mi (0.8 km) from north to south. At the Santa Clarita population, total area occupied per year has ranged from 0.5-16.5 ac (0.2-6.7 ha) between 2002 and 2007. The most recent data from 2011 to 2014 show the cumulative acreage across years ranged from 17.8-20.7 ac (7.2-8.4 ha). There are no population estimates from 2011 through 2014. The Santa Clarita population has roughly the same occupied acreage as Laskey Mesa but is more widely distributed across the landscape, scattered over a range of 4 mi (6.4 km) from east to west, and 4 mi (6.4 km) north to south.

    Planned Conservation Measures

    At the Laskey Mesa population, there is currently no on-the-ground management of Chorizanthe parryi var. fernandina; however, the site is conserved as permanent parkland as part of the Upper Las Virgenes Canyon Open Space Preserve. At the Santa Clarita population, the California Department of Fish and Game (CDFG) (referred to as the California Department of Fish and Wildlife (CDFW) as of 2014) issued a California Endangered Species Act section 2081 incidental take permit (ITP) to Newhall Land Company for the partial removal of C. parryi var. fernandina due to the proposed Newhall Ranch development project. Newhall Land Company developed the Spineflower Conservation Plan (SCP), which was finalized in 2010 (Dudek 2010a) (available at http://www.regulations.gov). The SCP serves as the mitigation and conservation plan for the purposes of the ITP (CDFG 2010, p. 2).

    As part of the SCP, Newhall Land Company has created a set of seven preserves that include 76 percent of the Chorizanthe parryi var. fernandina occurrences and occupied habitat at the Santa Clarita site, the majority of which would be adjacent to and bordered by the proposed Newhall Ranch development project. The SCP also includes management actions within the preserves to reduce indirect effects of the proposed development (including those from nonnative, invasive grasses and Argentine ants (Linepithema humile)). Newhall Land Company proposes to implement an adaptive management program for impacts under the SCP (Dudek 2010a, p. 141) and the Argentine Ant Control Plan (AACP) (Dudek 2014c, p. 22). Easements and a management endowment for the preserves and monitoring have been established. The rest of the SCP has not yet been implemented.

    The proposed development of Newhall Ranch would remove 24 percent of the occurrences of Chorizanthe parryi var. fernandina and its habitat, and would separate occurrences more than current conditions by removing C. parryi var. fernandina that connect, or are intermittent between, the larger concentrations of C. parryi var. fernandina within the designated preserves. Newhall Land Company has proposed to reduce the impacts of this habitat fragmentation by integrating corridors (in particular the Santa Clara River riparian corridor) into their development plans, along with potential C. parryi var. fernandina outplanting within the preserves (Dudek 2010a, pp. 146-148). Six of the seven preserves are directly connected to adjacent natural or human-created open space via the river corridor, and the seventh, Entrada, is connected to open space via an existing and frequently-maintained utility corridor (CDFW in litt. 2016, p. 3). The open space areas within the proposed Newhall Ranch project as a whole, to which the preserves are connected, are intended to maintain landscape-level ecological functions and processes (CDFW in litt. 2016, p. 2-3). Open space varies in size and habitat quality, and according to the proposed development plan, human development would be adjacent to or border the majority of the preserves and the corridors. The SCP stresses maintaining natural hydrological conditions during construction of Newhall Ranch to prevent invasion of Argentine ants. However, even though construction has not yet begun, Argentine ants have been identified in two of the preserves and in adjacent corridors. Newhall Land Company proposes to implement control measures for Argentine ants using an integrated pest management strategy (Dudek 2014c, entire).

    Newhall Land Company has also deposited funds with the National Fish and Wildlife Foundation for management of Chorizanthe parryi var. fernandina at the Laskey Mesa site. The August 2014 property analysis record and September 2014 memorandum prepared by Dudek identify the management activities for C. parryi var. fernandina at Laskey Mesa (Newhall Land Company and Dudek 2014, entire). The funding is to be used for on-the-ground management activities that include research studies, fencing, weeding, surveys, annual reporting, and other activities. When this funding becomes accessible, we anticipate that the MRCA will implement the identified management activities.

    In addition, Newhall Land Company recently developed a draft “San Fernando Valley Spineflower Enhancement and Introduction Plan,” which outlines a proposal to experimentally introduce Chorizanthe parryi var. fernandina to areas at the Santa Clarita site that have never been known to be occupied and are outside of the development footprint (Newhall Land Company 2016, entire). We anticipate continuing to work with Newhall Land Company and CDFW on additional conservation for C. parryi var. fernandina at the Santa Clarita population. The intervening time between a proposed and possible final rule to list this species provides the opportunity to develop measures to improve the future status of C. parryi var. fernandina at this site.

    In our Species Report (Service 2016), we completed an initial evaluation of the potential effectiveness of the conservation measures in the 2010 SCP, but because Newhall Land Company is supplementing their conservation strategy, we do not consider this evaluation finalized. We will continue to work with Newhall Land Company and CDFW in the development of an expanded and supplemented conservation strategy, and will formally evaluate all measures included in the supplemental conservation strategy using the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100; March 28, 2003), thereby taking all formalized conservation measures into consideration before making our final determination of the status of the plant.

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of Chorizanthe parryi var. fernandina (Service 2016, entire), which is summarized in this document and available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078. All potential threats of which we are aware that may be acting upon C. parryi var. fernandina currently or in the future (and consistent with the five listing factors identified in section 4(a)(1) of the Act) are evaluated and addressed in the Species Report (Service 2016, entire).

    Stressors that currently act, or may act, on Chorizanthe parryi var. fernandina in the foreseeable future include development; nonnative, invasive plants; Argentine ants; grazing and agriculture; utility line easements and maintenance; miscellaneous land use; recreation; wildfire; and climate change. The effects of these stressors are magnified by virtue of the plant having small population sizes. For the purposes of this analysis, we define the “foreseeable future” time period to be 25 years. This timeframe takes into account the potential impacts of the completion of the proposed development of Newhall Ranch, variation in climate, and planned conservation measures for the Laskey Mesa and Santa Clarita populations. All of these potential stressors are evaluated and presented in our 2016 Species Report (Service 2016, pp. 20-78). The best available data indicate that grazing and agriculture, utility line easements and maintenance, miscellaneous land use, recreation, and wildfire are not resulting in population or rangewide impacts currently or in the future such that they rise to the level of threats. We conclude this because these activities have been or will be removed from most areas that overlap C. parryi var. fernandina, with the exception of wildfire, for which current impacts at Laskey Mesa and Santa Clarita will remain approximately the same into the future. The remaining stressors—development; nonnative, invasive plants; Argentine ants; and potentially climate change—acting on the small isolated populations are described below because we have determined that population or rangewide impacts may contribute to, or are likely to contribute to, considerable loss of individuals or habitat currently or in the future.

    Development

    Development consists of converting the landscape into residential, commercial, industrial, and recreational features, with associated infrastructure such as roads. Historically, Chorizanthe parryi var. fernandina was known from no fewer than 10 locations in Los Angeles and Orange Counties (CDFG 2002, p. 14) (see Figure 1, above). After 1929, the plant was presumed extinct by the botanical community because C. parryi var. fernandina was extirpated from all of the areas where it was originally collected. The majority of the historical collections of C. parryi var. fernandina from the greater Los Angeles metropolitan area were made in areas where development has replaced native habitats (Reveal and Hardham 1989, p. 149).

    In 1999, Chorizanthe parryi var. fernandina was discovered at Laskey Mesa within the footprint of the proposed Ahmanson Ranch development project site. This proposed development did not occur as planned. The State of California purchased the property for conservation in 2003. In 2000, C. parryi var. fernandina was discovered near Santa Clarita on land owned by the Newhall Land Company (Dudek 2010a, pp. 16-17) at the site of the proposed Newhall Ranch development. Currently, development does not impact C. parryi var. fernandina at either population. In the future, there will be no development at the Laskey Mesa site because the property is owned and managed by the SMMC and MRCA, and preserved as permanent parkland. At the Santa Clarita site, the population is within the footprint of the proposed Newhall Ranch development project.

    As planned, the future development of the proposed Newhall Ranch would directly remove 24 percent of the Chorizanthe parryi var. fernandina population and occupied habitat at the Santa Clarita site, reducing the population from 20.24 ac (8.2 ha) to 15.4 ac (6.2 ha) (Dudek 2010a, Table 12, p. 67). The proposed development would also create indirect effects by fragmenting the habitat between the occurrences of C. parryi var. fernandina, which would: (1) Create edge effects around remaining populations, such as increasing the risk of invasion of nonnative, invasive plants and animals; and (2) separate occurrences more than current conditions because much of the area between the remaining occurrences would be residential and commercial development (Dudek 2010a, pp. 48-117), potentially affecting pollination and dispersal of the plant (Steffan-Dewenter and Tscharntke 1999, p. 437; Menges 1991, pp. 158-164; Jennerston 1988, pp. 359-366; Cunningham 2000, pp. 1149-1152). These indirect effects of the proposed development would remain into the future post-construction.

    Under the SCP, Newhall Land Company designated seven spineflower preserves containing 15.4 ac (6.2 ha) of Chorizanthe parryi var. fernandina occupied area, which is the remaining 76 percent of the Santa Clarita population. The SCP also includes several preserve management actions intended to address indirect effects of the proposed development. Easements and an endowment to manage and monitor the preserves have been put in place; additional management actions have not yet been implemented.

    Overall, we conclude that proposed development at one of the two Chorizanthe parryi var. fernandina populations will result in the loss of 24 percent of the Santa Clarita population in the future. This equates to a loss of 12-14 percent of the plant rangewide. In addition, indirect effects to the remaining 76 percent of the Santa Clarita population (38-44 percent of the plant rangewide) are expected in the future as a result of fragmenting the landscape. This fragmentation would result in edge effects around the remaining occurrences that put these patches at risk and separate them more than they are under current conditions. It is possible that future management actions to ameliorate indirect effects of the development to the 76 percent of the population that would remain within these preserves after development could be implemented and may be effective. However, at this time, we conclude that development is a future population-level threat to the plant as it would result in loss of habitat and individuals, and further reduce the range of this plant, which is already vulnerable due to its small size and isolated populations (Factors A and E).

    Small, Isolated Populations

    The effects of having small, isolated populations include increased risk of extinction from random, naturally occurring events, and potentially reduced genetic variation, which can affect the ability of a species to sustain itself into the future in the face of environmental fluctuations. There are two known populations of Chorizanthe parryi var. fernandina, one at Laskey Mesa and one at Santa Clarita, each comprising approximately 15 to 20 ac (6 to 8 ha) of occupied area. The two populations at Laskey Mesa and Santa Clarita comprise the current known range of C. parryi var. fernandina; the populations are approximately 17 mi (27 km) apart from north to south.

    Because there are only two populations of Chorizanthe parryi var. fernandina, naturally occurring events and other stressors increase the risk of extirpation. Small, highly fragmented populations have a high extinction risk due to isolation (no other populations to “rescue” a declining or extirpated one) and small total population sizes (MacArthur and Wilson 1967, entire), both of which make them more vulnerable, especially to random, naturally occurring events, such as drought and wildfire (Kohlman et al. 2005, entire; Soule et al. 1992, p. 44).

    In addition, lower and reduced genetic variation may make a population less adapted to existing pressures and incapable of adaptation to new stressors (Frankham 1995, entire). Thus, small populations and low genetic diversity can have synergistic effects with respect to population decline, decreasing a species' ability to persist within a changing environment. In all but extreme cases, genetic losses due to drift and inbreeding within populations can be limited by keeping population sizes large relative to their historical sizes (Neel et al. 2008, p. 939). In addition, levels of diversity can be enhanced by high rates of gene flow among populations because such gene flow increases effective population size and facilitates exchange of alleles (Neel et al. 2008, p. 950). The genetic characteristics of Chorizanthe parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research of C. parryi var. fernandina's genetic structure and the degree of inbreeding depression (Dudek 2015, p. 2; Dudek 2016c, p. 9). As of January 2016, all field collection is complete and the study is ongoing (D. Rodgers 2016, pers. comm.).

    Overall, we conclude that having only two small, isolated populations decreases the ability of Chorizanthe parryi var. fernandina to sustain itself into the future in the face of environmental fluctuations and random, naturally occurring events. Historically, the plant was known from no less than 10 additional locations across southern California. This stressor will continue to affect C. parryi var. fernandina and its habitat at both sites into the future. It is possible that additional populations at historically occupied but currently extirpated sites would decrease the risk of having small, isolated populations for C. parryi var. fernandina into the future. However, at this time, we conclude that having small, isolated populations is a current and future population-level threat to the plant (Factor E).

    Nonnative, Invasive Plants

    Nonnative, invasive plants include nonnative vegetation that occurs within or adjacent to habitat that supports Chorizanthe parryi var. fernandina. In particular, we focused on the impacts of nonnative grasses and other fast-invading, nonnative annual plants because they are abundant at both sites and are efficient at displacing native vegetation. Nonnative, invasive grasses historically affected the Laskey Mesa and Santa Clarita populations (GLA 2000, p. 5; Dudek 2010a, pp. 48-51). Past activities (e.g., grazing and other human-induced disturbances) have historically occurred over most of the Upper Las Virgenes Canyon Open Space Preserve area including Laskey Mesa; it is not known whether Laskey Mesa was formerly native grassland, coastal scrub, or a mix of both prior to European contact (Dudek 2010a, p. 21). Historical and existing grazing activities, and other historical land uses, have affected much of the natural habitat at the Santa Clarita site, displacing scrub habitats with annual grasslands (Dudek 2010a, pp. 48-51). Currently, nonnative, invasive grasses are abundant at both the Laskey Mesa and Santa Clarita sites and reduce available habitat; compete with C. parryi var. fernandina for light, water, and soil nutrients; increase the potential for wildfire; and alter pollinator communities. As of 2015, the vegetation at Laskey Mesa was largely comprised of nonnative grasses, primarily ripgut brome (Bromus diandrus), but also several other native and nonnative grasses (notably purple needlegrass (Nassella pulchra)) (Cooper 2015, p. 5). At the Santa Clarita site, currently 29 percent of the total species are nonnative within the spineflower preserves (Dudek 2013, p. 13); 11 nonnative species in the grass family (Poaceae) were present (Appendix B of Dudek 2013).

    This stressor will continue to affect Chorizanthe parryi var. fernandina and its habitat at both sites into the future. With no future land use change at the Laskey Mesa population, we do not anticipate the impact of nonnative, invasive plants will become worse than current conditions, given that disturbance is a primary factor that promotes the invasion of nonnative plants (Rejmanek 1996; D'Antonio and Vitousek 1992; Hobbs and Huenneke 1992; Brooks et al. 2004; Keeley et al. 2005). At the Santa Clarita population, the proposed development of Newhall Ranch would convert areas that currently contain nonnative vegetation to urban areas, thereby reducing the total acreage of nonnative vegetation at this site, but this ground disturbance would also create additional opportunities for nonnative plants to invade urban edges of the spineflower preserves and natural open space. In general, nonnative weedy species are often edge species and become more prevalent or increase in abundance, while rare and sensitive species and species that were once widespread tend to decline (Hilty et al. 2006, pp. 42-45).

    There are currently no management actions that are occurring to reduce direct or indirect impacts from nonnative, invasive plants. However, we note the following future proposed actions:

    (1) We anticipate that the MRCA will address the abundance of nonnative vegetation at Laskey Mesa once the funding becomes available for management; however, to date management actions have not been implemented at this site, and the timeline for management actions is unknown.

    (2) Newhall Land Company has proposed to restore habitat for Chorizanthe parryi var. fernandina at Santa Clarita and implement measures as part of the proposed development of Newhall Ranch to reduce the abundance and impact of nonnative vegetation within the spineflower preserves.

    Overall, we conclude that nonnative, invasive plants are abundant at both Laskey Mesa and Santa Clarita populations, reduce available habitat quality, compete with Chorizanthe parryi var. fernandina for resources, and increase potential for wildfire. This stressor historically affected Laskey Mesa and Santa Clarita populations and will continue to affect C. parryi var. fernandina and its habitat at both sites into the future. It is likely that future management actions to reduce the presence and impact of nonnative, invasive grasses would be implemented in the future and may be effective. We will further evaluate future conservation measures at such time that Newhall Land Company finalizes supplementing their conservation strategy. However, at this time, we conclude that nonnative, invasive plants are a current and future population-level threat to C. parryi var. fernandina (loss of individuals) and its habitat (Factors A and E).

    Argentine Ants

    Argentine ants may impact pollination and seed dispersal vectors of Chorizanthe parryi var. fernandina. Based on the best available information, Argentine ants have not historically impacted the Laskey Mesa or Santa Clarita populations of C. parryi var. fernandina. Currently at Laskey Mesa, Argentine ants are present in close proximity to the ranch house and a nearby eucalyptus (Eucalyptus spp.) tree, but they were not encountered in areas occupied by C. parryi var. fernandina because, presumably, the conditions are too dry and thus unsuitable (Sapphos 2000, pp. 6-8). At Santa Clarita, as of February 2016, Argentine ants are present within two spineflower preserves, Entrada and Potrero (Dudek, 2016b, pp. 17, 20), in the Santa Clara River corridor (Dudek 2016b, entire), at Middle Canyon Spring (Dudek 2010a, p. 130), and in the existing utility corridor that runs along the southern portion of the property and through the Entrada Preserve (Dudek 2016b, p. 17). We do not have any information regarding the presence of Argentine ants where C. parryi var. fernandina occurs outside of the preserves at this site.

    At Laskey Mesa, we do not expect Argentine ants will impact Chorizanthe parryi var. fernandina in the future without a change in land use. At Santa Clarita, Argentine ants already occur and we would expect them to occur within development areas and open areas adjacent to the preserves in the future after development of the proposed Newhall Ranch (Dudek 2010a, p. 130; Dudek 2016b, pp. 4-20). Anthropogenic modifications to the physical environment are preeminent in determining the extent to which Mediterranean scrub communities in southern California are susceptible to invasion by Argentine ants (Holway et al. 2002, p. 1617). Invasion of Argentine ants into natural areas from urban areas is a function of moisture, distance from the urban edge, season, and vegetation type (Bolger 2007, p. 303; Suarez et al. 1998, pp. 2047-2054; Erickson 1971, p. 264; Human and Gordon 1996, p. 408; Holway 1995, p. 1635; Holway 2005, pp. 563-566; Staubus et al. 2015, p. 677). Because Argentine ants are present within two preserves and the Santa Clara River corridor and utility corridor, and because of the proposed development of Newhall Ranch, we anticipate that Argentine ants will be a long-term concern for the persistence of C. parryi var. fernandina at this site.

    Argentine ants can affect Chorizanthe parryi var. fernandina reproduction by reducing effective pollination, successful seed set, and potentially the degree of heterozygosity of plants. Argentine ants are known to: (1) Displace native epigeic (above-ground) ants (Ward 1987, pp. 13; Human and Gordon 1996, pp. 407-411; Suarez et al. 1998, pp. 2047-2054; Holway 2005, pp. 563-566; Holway and Suarez 2006, pp. 321-322; Bolger 2007, pp. 301-303) that act as pollination and seed dispersal vectors for C. parryi var. fernandina; and (2) reduce floral visits by bees and thus reduce fruit production of plants (i.e., Calystegia macrostegia ssp. macrostegia (Santa Cruz morning glory) (Hanna 2015, p. 226); Ferocactus viridescens (coast barrel cactus) (LeVan and Holway 2014, pp. 167-169)) in areas dominated by Argentine ants. Based on the best available data, maintaining conditions that support both terrestrial and aerial guilds of pollinators is likely required for long-term viability of C. parryi var. fernandina (Jones et al. 2009, p. 39). The loss of effective pollination through reductions in local pollinator abundance and diversity would reduce successful seed set, or if the plant is at least partially self-compatible, would reduce the degree of heterozygosity within plant (Jones et al. 2010, p. 165). C. parryi var. fernandina would have difficulty maintaining long-term viability after a series of poor seed-production years without a natural diversity of pollinators because effective pollinators lead to significant increases in seed set and seed viability (Jones et al. 2009, p. 39; for examples of other annual plants, see Steffan-Dewenter and Tscharntke 1999, entire; Jennersten 1988, entire).

    Newhall Land Company incorporated buffers of varying widths in the SCP and proposes to maintain the current hydrology within the spineflower preserves (Dudek 2010a, pp. 15, 125-129) to reduce the potential invasion of Argentine ants into the preserves. Abiotic conditions (e.g., soil moisture) and proximity to human development are primarily responsible for the rate of Argentine ant invasions (Suarez et al. 1998, pp. 2047-2054). Buffers between natural areas and urbanization have been suggested to decrease the likelihood of Argentine ant invasion. According to the best scientific information, the varying widths of the buffers around the spineflower preserves in the SCP are less than what is recommended to preclude Argentine ant invasion at urban edges and the proposed water control measures range from moderately to highly effective (Conservation Biology Institute 2000, p. 21; Dudek 2010b, p. 4.5-1770). Newhall Land Company proposes to utilize control methods if Argentine ants are observed in the preserves. The proposed Argentine ant control measures in the SCP and AACP could negatively impact other arthropods that are beneficial to Chorizanthe parryi var. fernandina, may not be applicable to controlling invasion into preserves (Gilboa et al. 2012, entire; Enzmann et al. 2012, entire) such as those at Santa Clarita, or are only recommended in closed systems where reintroduction of Argentine ants can be actively withheld (Enriquez Leni 2012, p. 55). The impacts to C. parryi var. fernandina from Argentine ants are likely to increase at Santa Clarita with the proposed development of Newhall Ranch.

    Overall, Argentine ants can directly impact pollinators and reduce effective pollination, reduce successful seed set, and may reduce the degree of heterozygosity of plants. Argentine ant invasion into the spineflower preserves is likely to displace native epigeic ants that are known pollinators and seed dispersers of Chorizanthe parryi var. fernandina. Similarly, non-ant arthropods that are known pollinators (e.g., honeybees) are likely to be negatively impacted by the presence of Argentine ants in the preserves. Conservation of conditions that support both guilds of pollinators is likely required for long-term viability of C. parryi var. fernandina. This stressor has not historically impacted C. parryi var. fernandina at either population. We do not anticipate an impact from Argentine ants at Laskey Mesa because there is no future land use change. At Santa Clarita, Argentine ants currently occur within two preserves (Entrada and Potrero), and the Santa Clara River corridor that connects six of the seven preserves. Argentine ants will occur adjacent to the preserves in the future post-development, and it is likely that Argentine ants will occur in other preserves in the future. It is likely that future management actions to reduce the presence and impact of Argentine ants at Santa Clarita would be implemented. Proposed actions to control Argentine ants have not been shown to be effective without negatively affecting native species that are important for C. parryi var. fernandina reproduction. We will further evaluate future conservation measures aimed at controlling Argentine ants at such time that Newhall Land Company finalizes supplementing their conservation strategy. However, at this time, we conclude that Argentine ants are a current and future population-level threat to C. parryi var. fernandina (loss of individuals) (Factor E).

    Climate Change

    The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2014, p. 119). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (for example, temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2014, p. 120). A recent synthesis report of climate change and its effects is available from the Intergovernmental Panel on Climate Change (IPCC) (IPCC 2014, entire).

    Global climate projections are informative, and in some cases, the only scientific information available. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2007, pp. 8-12). For this analysis across the two populations of Chorizanthe parryi var. fernandina, we used a projection tool called ClimateWizard (2015) to estimate what changes in rainfall and temperature, if any, would occur in the region that includes the Santa Clarita and Laskey Mesa populations over the next 50 years. ClimateWizard (2015) is useful in projecting future climate conditions and to compare the projections to baseline values (the latter of which is defined as the average temperature or precipitation between 1961 and 1990 (ClimateWizard 2015)).

    There is no way to measure past impacts at either population associated with climate change. Compared to historical/baseline temperature and precipitation measurements, projections of climate change in the south coast region of California indicate that precipitation will decrease slightly and temperature will slightly increase by mid-century. The response of Chorizanthe parryi var. fernandina may be similar to other plant species with a similar life history. A growing body of literature discusses the specific mechanisms by which climate change could affect the abundance, distribution, and long-term viability of plant species, as well as current habitat configuration over time, including, but not limited to: Root et al. (2003), Parmesan and Yohe (2003), and Visser and Both (2005). Some of the responses by plants to climate change presented by these studies and others include the following:

    1. Drier conditions may result in less suitable habitat, or a lower germination success and smaller population sizes;

    2. Higher temperatures may inhibit germination, dry out soil, or affect pollinator services;

    3. The timing of pollinator life cycles may become out-of-sync with timing of flowering;

    4. A shift in the timing and nature of annual precipitation may favor expansion in abundance and distribution of nonnative species; and

    5. Drier conditions may result in increased fire frequency, making the ecosystems in which a species currently grows more vulnerable to threats of nonnative plant invasion.

    Overall, although many climate models generally agree about potential future changes in temperature and precipitation, their consequent effects on vegetation are more uncertain, as is the rate at which any such changes might be realized. It is not clear how or when changes in vegetation type or plant species composition will affect the distribution of Chorizanthe parryi var. fernandina. Therefore, uncertainty exists when determining the level of impact climate change may have on C. parryi var. fernandina or its habitat. Compared to historical/baseline temperature and precipitation measurements, projections of climate change in the south coast region of California indicate that precipitation will decrease slightly and temperature will slightly increase by mid-century. But at this time and based on the analysis in the Species Report (Service 2016, pp. 73-78) and summarized above, we do not have reliable information to indicate that climate change is a threat to C. parryi var. fernandina habitat now or in the future, although we will continue to seek additional information concerning how climate change may affect the plant and its habitat (Factors A and E).

    Synergistic Effects

    When stressors occur together, one stressor may exacerbate the effects of another stressor, causing effects not accounted for when stressors are analyzed individually. Synergistic effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of Chorizanthe parryi var. fernandina. Stressors that could act synergistically on C. parryi var. fernandina include development; having small, isolated populations; nonnative, invasive plants; Argentine ants; wildfire, and potentially climate change. At the Laskey Mesa site, the presence of nonnative, invasive grasses increases the frequency of wildfire, which in turn creates more open area for nonnative, invasive plants to grow that are more likely to ignite and carry fire than native vegetation (Keeley et al. 2005, p. 2123). At the Santa Clarita site, the future development of Newhall Ranch would directly remove 24 percent of the C. parryi var. fernandina population, fragmenting the habitat between the occurrences of C. parryi var. fernandina, which will create edge effects around remaining occurrences within the spineflower preserves, and increase the risk of invasion of Argentine ants and nonnative, invasive plants. In general, invasive species are often edge species and become more prevalent or increase in abundance, while rare and sensitive species and species that were once widespread tend to decline (Hilty et al. 2006, pp. 42-45). In addition, the potential loss of habitat and conditions that support growth of C. parryi var. fernandina due to climate change can work in combination with and exacerbate the effects of all other stressors, such as increasing the frequency or intensity of wildfire and increasing the spread of nonnative, invasive plants and animals. When considered together, the impact of these stressors has the potential to be high. Even though the impact of each of these stressors may be low to moderate under current conditions, the proposed development of Newhall Ranch, which would occur over the next 25 years, will likely exacerbate the impact of the stressors while confining the C. parryi var. fernandina population at this site to small patches of suitable habitat adjacent to and bordered by urban development. Long-term future impacts may increase synergistic effects, and it is unknown if C. parryi var. fernandina will be able to adapt to the potential synergistic effect of stressors.

    Resiliency, Representation, and Redundancy

    We use the principles of resiliency, representation, and redundancy as a lens to evaluate current and future effects to Chorizanthe parryi var. fernandina. Resiliency refers to the capacity of an ecosystem, population, or organism to recover quickly from disturbance by tolerating or adapting to changes or effects caused by a disturbance or a combination of disturbances. The degree of resiliency of a species is influenced by the health of the populations, including number of individuals, genetic diversity, and habitat quality. Resiliency increases with a higher number of individuals, increasing genetic diversity, or better habitat quality; it decreases with fewer individuals, less genetic diversity, or lowered habitat quality. In the case of Chorizanthe parryi var. fernandina, the number of individuals can fluctuate annually by orders of magnitude (GLA 2000; Sapphos 2000, 2001; Dudek 2010a; Cooper 2015; Dudek 2002-2007, 2010, 2011-2014). The genetic characteristics of C. parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research into C. parryi var. fernandina's genetic structure and the degree of inbreeding depression (Dudek 2015, p. 2; Dudek 2016c, p. 9). Habitat quality for C. parryi var. fernandina at the Santa Clarita population would be affected by fragmentation from the proposed Newhall Ranch development, which would result in edge effects, such as increasing the risk of invasion of nonnative, invasive plants and animals. Occurrences of C. parryi var. fernandina and its habitat would be more separated than current conditions because occurrences that connect, or are intermittent between, the larger concentrations of C. parryi var. fernandina within the designated preserves would be lost to development, potentially affecting pollination and dispersal of the plant. Highly fragmented populations have an increased extinction risk due to isolation because they are less likely to be repopulated or supplemented by nearby populations, which makes them more vulnerable, especially to random, naturally occurring events such as drought and wildfire (Kohlman et al. 2005, entire; Soule et al. 1992, p. 44). Reducing resiliency by decreasing habitat quality at the Santa Clarita population increases the overall risk to the plant from disturbance or a combination of disturbances. The best scientific and commercial information available indicates that there are current and future stressors acting upon C. parryi var. fernandina populations such that we anticipate impacts to its overall resiliency in the future.

    Redundancy refers to the ability of a species to compensate for fluctuations in or loss of populations across the species' range such that the loss of a single population has little or no lasting effect on the structure and functioning of the species as a whole. Multiple interacting populations across a broad geographic area provide insurance against the risk of extinction caused by catastrophic events. Because historically there were no fewer than 10 additional populations across Los Angeles and Orange Counties in Southern California, redundancy is decreased for Chorizanthe parryi var. fernandina. If either of the two extant populations were permanently lost, the redundancy of C. parryi var. fernandina would be further lowered, thereby decreasing the plant chance of survival in the face of potential environmental or demographic stochastic factors and catastrophic events (e.g., wildfire, extreme drought). We conclude that there is not sufficient redundancy at present to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the population.

    Representation refers to a species' ability to adapt to changing environmental conditions related to distribution within the species' ecological settings. Representation is characterized by the breadth of genetic and environmental diversity within and among populations. The level of genetic divergence among the areas where Chorizanthe parryi var. fernandina grows is unknown. However, occupied area across multiple populations increases the probability of demographic persistence and preservation of overall genetic diversity by providing a larger genetic reservoir. Historically, there were no fewer than 10 C. parryi var. fernandina populations across southern California, representing at least five level IV ecoregions of the conterminous United States. Ecoregions denote areas of general similarity in ecosystems through analysis of patterns of biotic and abiotic phenomena, including geology, physiography, vegetation, climate, soils, land use, wildlife, and hydrology; level IV is the finest ecoregion level developed by the Environmental Protection Agency (Environmental Protection Agency 2016; https://catalog.data.gov/dataset/level-iv-ecoregions-of-california). Currently, there are only two C. parryi var. fernandina populations, 17 mi (27 km) apart, representing only one level IV ecoregion. Therefore, we conclude that representation across different ecological settings for C. parryi var. fernandina is reduced, decreasing the ability of the plant to adapt to changing environmental conditions into the future, which increases the risk of future extirpation of the plant.

    Overall, redundancy and representation are currently reduced and resiliency is likely to decrease in the future, bringing into question whether Chorizanthe parryi var. fernandina can sustain itself in the face of environmental fluctuations and random, naturally occurring events. Fragmentation of the Santa Clarita population is likely to decrease habitat quality, reducing resiliency at this population and increasing the overall risk to the plant from random, naturally occurring events. With only two populations, there may not be sufficient redundancy to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the populations. Currently, the two C. parryi var. fernandina populations represent only one level IV ecoregion, down from five, decreasing the ability of the plant to adapt to changing environmental conditions into the future. At this time, we conclude that there may not be sufficient resiliency, representation, or redundancy to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the plant.

    Please refer to the Potential Stressors section in the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) Species Report (Service 2016, pp. 20-78) for a more detailed discussion of our evaluation of the biological status of the plant and the factors that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data.

    Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. This document constitutes the Service's 90-day and 12-month findings on the December 6, 1999, and January 27, 2000, petitions to list Chorizanthe parryi var. fernandina under the Act as an endangered species.

    Based on our review of the best scientific and commercial information available, we find that the current threats are of sufficient imminence, intensity, or magnitude to indicate that Chorizanthe parryi var. fernandina is likely to become an endangered species within the foreseeable future throughout all of its range (threatened). We have determined that C. parryi var. fernandina warrants listing based on two of the five factors (Factors A and E), including historical and future loss of habitat and individuals from development (Factors A and E); having small, isolated populations (Factor E); presence of invasive, nonnative plants (Factors A and E); proliferation of Argentine ants (Factor E); and potentially climate change (Factors A and E).

    The Laskey Mesa population is currently affected by nonnative, invasive grasses (Factors A and E), being one of two small, isolated populations (Factor E), and potentially by climate change (Factors A and E). Past land-use activities (e.g., grazing and other human-induced disturbances), which have historically occurred over most of the Upper Las Virgenes Canyon Open Space Preserve area including Laskey Mesa, have greatly modified the vegetation and replaced many native plant habitats into nonnative annual grasslands (GLA 2000, p. 5). Nonnative, invasive grasses are currently reducing available habitat for Chorizanthe parryi var. fernandina throughout this population and degrading the overall quality of the habitat, although this impact may decrease in the future when management is implemented.

    The Santa Clarita population is currently affected by nonnative, invasive grasses (Factors A and E); Argentine ants (Factor E); being one of two small, isolated populations (Factor E); and potentially by climate change (Factors A and E). The impacts of nonnative grasses occur throughout the entire population at this site, although this impact may decrease in the future when management is implemented. Argentine ants are currently present within at least two spineflower preserves (Entrada and Potrero), and within the Santa Clara River corridor. The invasion of Argentine ants into the preserves is likely to displace or negatively affect arthropods, including known Chorizanthe parryi var. fernandina pollinators (e.g., epigeic ants, beetles (Coleoptera), flies (Diptera), honeybees) and seed dispersers (e.g., harvester ants), reducing the natural diversity of pollinators and dispersers, which is expected in turn to decrease the long-term viability of C. parryi var. fernandina after a series of poor seed-production years.

    The Santa Clarita population will also be affected in the future by the proposed Newhall Ranch development project (Factors A and E). The development of Newhall Ranch will remove 24 percent of the Chorizanthe parryi var. fernandina population at this site, resulting in loss of individuals and habitat. The resulting fragmentation could increase impacts of random, naturally occurring events and result in loss of genetic variation. In addition, edge effects include increased risk of invasion of nonnative plants (Factors A and E) and Argentine ants (Factor E). Argentine ants will likely occur adjacent to the preserves in the future post-development, and it is likely that Argentine ants will occur in other preserves that are currently free of Argentine ants in the future.

    Population size, distribution, and diversity can be an indicator of whether a species can sustain itself into the future in the face of environmental fluctuations and natural, randomly occurring events. Decreased resiliency at the Santa Clarita population due to habitat fragmentation from the proposed Newhall Ranch development would increase the overall risk to the plant from disturbance or a combination of disturbances. With only two populations, Chorizanthe parryi var. fernandina exhibits low redundancy at present, which may be insufficient to sustain the plant over the long term, given current and future stressors acting upon the populations. Historically C. parryi var. fernandina populations across southern California represented at least five level IV ecoregions; currently, the two C. parryi var. fernandina populations represent only one level IV ecoregion, decreasing the ability of the plant to adapt to changing environmental conditions into the future. At this time, we conclude that there may not be sufficient resiliency, redundancy, or representation to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the populations.

    The Act defines the term “species” as includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that Chorizanthe parryi var. fernandina is likely to become endangered throughout all or a significant portion of its range within the foreseeable future based on the current and future threats to the plant. The plants' historical range has been significantly reduced, and the remaining habitat and two populations are significantly and currently impacted by multiple threats at the population or rangewide scale. Therefore, on the basis of the best available scientific and commercial information, we propose listing C. parryi var. fernandina as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

    The threats associated with indirect effects to the Santa Clarita population from the Newhall Ranch proposed development (e.g., fragmentation and edge effects) are expected in the future. Fragmentation would separate Chorizanthe parryi var. fernandina occurrences more than current conditions, potentially reducing pollination and dispersal, and result in edge effects around the remaining post-development occurrences, including an increase in nonnative plants and Argentine ants. Because these are future threats, we have determined that C. parryi var. fernandina is not currently in danger of extinction and thus does not meet the definition of “endangered.” Rather, these threats are likely to occur in the foreseeable future such that the plant is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, which is the definition of a threatened species.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that Chorizanthe parryi var. fernandina is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Completed recovery plans may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria to evaluate when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If we list Chorizanthe parryi var. fernandina, the recovery outline, draft recovery plan, and the final recovery plan for the plant will be available on our Web site (http://www.fws.gov/endangered), or from our Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If Chorizanthe parryi var. fernandina is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of California would be eligible for Federal funds to implement management actions that promote the protection or recovery of C. parryi var. fernandina. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although Chorizanthe parryi var. fernandina is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this plant. Additionally, we invite you to submit any new information on this plant whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the plants' habitat that may require conference or consultation or both under section 7 of the Act as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities on Federal lands and activities on non-Federal lands that require the issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers.

    It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered and threatened plants. With regard to threatened plants, 50 CFR 17.71 provides that all of the prohibitions in 50 CFR 17.61 applicable to endangered plants apply to threatened plants, with one exception. Thus, the regulations at 50 CFR 17.71(a) make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction any threatened plant. There is an exception for the seeds of cultivated specimens, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container. The Service concludes that the following activities would not result in violation of section 9 (this list is not comprehensive): Activities on private land such as grazing management, agricultural conversions, flood and erosion control, residential development, road construction, and pesticide/herbicide application when consistent with label restrictions. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Critical Habitat for Chorizanthe parryi var. fernandina Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

    There is currently no imminent threat to Chorizanthe parryi var. fernandina from collection or vandalism under Factor B, and identification and mapping of critical habitat is not likely to increase any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the plant. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to C. parryi var. fernandina and may provide some measure of benefit, we find that designation of critical habitat is prudent for C. parryi var. fernandina.

    Critical Habitat Determinability

    Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

    As discussed above, we have reviewed the available information pertaining to the biological needs of Chorizanthe parryi var. fernandina and habitat characteristics where this plant is located. On the basis of a review of available information, we find that critical habitat for C. parryi var. fernandina is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking. We will make a determination on critical habitat no later than 1 year following any final listing determination.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available in the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) Species Report available at http://www.regulations.gov and upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the Ventura Fish and Wildlife Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.12 paragraph (h) by adding an entry for “Chorizanthe parryi var. fernandina” to the List of Endangered and Threatened Plants in alphabetical order under FLOWERING PLANTS to read as follows:
    § 17.12 Endangered and threatened plants.

    (h) * * *

    Scientific name Common name Where listed Status Listing citations and applicable rules Flowering Plants *         *         *         *         *         *         * Chorizanthe parryi var. fernandina San Fernando Valley spineflower Wherever found T [Insert Federal Register citation when published as a final rule] *         *         *         *         *         *         *
    Dated: August 30, 2016. James W. Kurth, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-22167 Filed 9-14-16; 8:45 am] BILLING CODE 4333-15-P
    81 179 Thursday, September 15, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Bridger-Teton Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Bridger-Teton Resource Advisory Committee (RAC) will meet in Kemmerer, Wyoming and Afton, Wyoming. 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://www.fs.usda.gov/main/btnf/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held on September 26, 2016, at 5:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Lincoln County Courthouse, 925 Sage Avenue, Suite 301, Kemmerer, Wyoming; and the Lincoln County Branch Office, Conference Room, 421 Jefferson Avenue, Afton, Wyoming. The public is welcome to attend in person or via teleconference. For anyone who would like to attend via teleconference, please visit the Web site listed in the Summary section or please contact the person listed under For Further Information.

    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 the Kemmerer Ranger District. Please call ahead at 307-828-5110 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Adriene Holcomb, District Ranger by phone at 307-828-5110, or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to review and authorize projects under 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 14, 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 Adriene Holcomb, District Ranger, 308 US Highway 189, Kemmerer, Wyoming 83101; by email to [email protected], or via facsimile to 307-828-5135.

    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 9, 2016. Adriene Holcomb, District Ranger.
    [FR Doc. 2016-22176 Filed 9-14-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Pike/San Isabel National Forests; Colorado; Pike/San Isabel National Forests Travel Management Plan AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of Public Scoping Comment Period Extension for Pike/San Isabel National Forests Travel Management Plan.

    SUMMARY:

    A Notice of Intent to Prepare an Environmental Impact Statement (EIS) announcing the Pike/San Isabel National Forests opening of their Travel Management Planning process 45 day public scoping comment period and public scoping meetings was published in the Federal Register on July 25, 2016 and available at the following link: https://www.federalregister.gov/articles/2016/07/25/2016-17498/pikesan-isabel-national-forests-colorado-pikesan-isabel-national-forests-travel-management-plan.

    The EIS scoping comment period was scheduled to end on September 8, 2016. This notice extends the comment period an additional 15 days to Friday, September 23, 2016. Project proposed action, purpose and need, alternatives and opportunities to comment are available at http://www.psitravelmanagement.org/.

    ADDRESSES:

    Written comments concerning this notice should be addressed to Travel Management, Pike/San Isabel National Forests, 2840 Kachina Dr., Pueblo, CO 81008. Comments may also be sent via email to [email protected], or via facsimile to 719-553-1440, with “PSI Travel Management” in the subject line. Comments must be readable in Microsoft Word, rich text or pdf formats.

    All comments, including names and addresses when provided, are placed in the record and will be available for public inspection and copying. The public may inspect comments after they are received and summarized at the travel planning Web page at: www.psitravelmanagement.org.

    FOR FURTHER INFORMATION CONTACT:

    John Dow, Forest Planner at 719-553-1476. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    Responsible Official

    The Responsible Official is Erin Connelly, Forest and Grassland Supervisor, Pike and San Isabel National Forests and Cimarron and Comanche National Grasslands, 2840 Kachina Dr., Pueblo CO 81008.

    Dated: September 8, 2016. Erin Connelly, Forest and Grassland Supervisor, Pike and San Isabel National Forests and Cimarron and Comanche National Grasslands.
    [FR Doc. 2016-22185 Filed 9-14-16; 8:45 am] BILLING CODE 3411-15-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Delaware Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of monthly planning meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Delaware State Advisory Committee to the Commission will convene by conference call at 1:00 p.m. (EST) a planning meeting on the following dates: Wednesday, September 28, 2016; Wednesday, October 19, 2016; Wednesday, November 16, 2016; Wednesday, December 21, 2016; Wednesday, January, 18, 2017 and Wednesday, February 15, 2017. The purpose of each planning meeting is to discuss project planning as the Committee moves to selecting a topic as its civil rights project. The Committee will also select additional officers, as necessary.

    DATES:

    The following dates: Wednesday, September 28, 2016; Wednesday, October 19, 2016; Wednesday, November 16, 2016; Wednesday, December 21, 2016; Wednesday, January, 18, 2017 and Wednesday, February 15, 2017.

    TIME:

    Each meeting starts at 1:00 p.m. (EST).

    PUBLIC CALL-IN INFORMATION:

    Conference call number: 1-888-224-1065 and conference call ID: 8667527.

    FOR FURTHER INFORMATION CONTACT:

    Ivy L. Davis, at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Members of the public may listen to the discussion by calling the following toll-free conference call number: 1-888-224-1065 and conference call ID: 8667527. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number herein.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-888-364-3109 and providing the operator with the toll-free conference call number: 1-888-224-1065 and conference call ID: 8667527.

    Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=240; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

    Agenda I. Welcome and Introductions Rollcall II. Planning Meeting Discuss project planning. III. Other Business IV. Adjournment Dated: September 12, 2016. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2016-22196 Filed 9-14-16; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the West Virginia Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of monthly planning meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the West Virginia State Advisory Committee to the Commission (MD State Advisory Committee) will convene by conference call at 12 p.m. (EST) on Friday, October 7, 2016. The purpose of planning meeting is to discuss project planning regarding the closeout of the Mental Health Project and topics for the Committee's future civil rights review.

    DATES:

    Friday, October 7, 2016, at 12 p.m. (EST).

    ADDRESSES:

    Public call-in information: Conference call-in number: 1-888-601-3861 and conference call ID: 636552.

    FOR FURTHER INFORMATION CONTACT:

    Ivy L. Davis, at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-601-3861 and conference call ID: 636552. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-888-601-3861 and conference call ID: 636552.

    Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at http://facadatabase.gov/committee/meetings.aspx?cid=281; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Eastern Regional Office at the above phone numbers, email or street address.

    Agenda I. Welcome and Introductions Rollcall II. Planning Meeting Discuss Mental Health Project and Other Topics for Civil Right Project III. Other Business IV. Adjournment Dated: September 12, 2016. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2016-22197 Filed 9-14-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-58-2016] Foreign-Trade Zone (FTZ) 46G—Cincinnati, Ohio, Notification of Proposed Production Activity, Givaudan Flavors Corporation, (Flavor Products), Cincinnati, Ohio

    Givaudan Flavors Corporation (Givaudan) submitted a notification of proposed production activity to the FTZ Board for its facility in Cincinnati, Ohio within Subzone 46G. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 25, 2016.

    The Givaudan facility is used for the production of flavor compounds. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Givaudan from customs duty payments on the foreign status components used in export production. On its domestic sales, for the foreign status components in the existing scope of authority, Givaudan would be able to choose the duty rates during customs entry procedures that apply to food articles containing sugar, other cyclanes, cyclenes and cycloterpenes, other cyclic hydrocarbons, acyclic terpene alcohols, butanoic acids, pentanoic acids, their salts and esters, citrus oil blends, aqueous distillates and aqueous solutions of essential oils, and terpenic by-products of the deterpenation of essential oils (duty rate ranges from free to 6.4%). Customs duties also could possibly be deferred or reduced on foreign status production equipment.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 25, 2016.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Kathleen Boyce at [email protected] or (202) 482-1346.

    Dated: September 6, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-22095 Filed 9-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-802] Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of the Second Five-Year Sunset Review of the Antidumping Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On March 1, 2016, the Department of Commerce (“Department”) initiated the second sunset review of certain frozen warmwater shrimp from the Socialist Republic of Vietnam (“Vietnam”). The Department determined that it was appropriate to conduct a full review. The Department preliminarily finds that revocation of this antidumping duty order would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Preliminary Results of Review” section of this notice.

    DATES:

    Effective September 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Irene Gorelik, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-6905.

    SUPPLEMENTARY INFORMATION: Background

    On March 1, 2016, the Department of Commerce (“Department”) initiated the second sunset review of certain frozen warmwater shrimp from the Socialist Republic of Vietnam (“Vietnam”) in accordance with section 751(c) of the Act.1 The Department received notices of intent to participate from domestic interested parties, the Ad Hoc Shrimp Trade Action Committee (“AHSTAC”), and the American Shrimp Processors Association (“ASPA”), within the deadline specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act, as manufacturers of a domestic-like product in the United States.

    1See Initiation of Five-Year (“Sunset”) Review, 81 FR 10578 (March 1, 2016) (“Initiation”).

    The Department received substantive responses from domestic interested parties (AHSTAC and ASPA) and respondent interested parties (collectively “Vietnamese Respondents”) within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). On April 21, 2016, the Department determined that Vietnamese Respondents accounted for more than 50 percent of exports by volume of the subject merchandise and, therefore, submitted an adequate substantive response.2 The Department also determined that domestic interested parties submitted an adequate response pursuant to 19 CRF 351.218(e)(1)(i). In accordance with 19 CFR 351.218(e)(2)(i), the Department determined to conduct a full sunset review of this antidumping duty order.

    2See Memorandum to the File, from Irene Gorelik, Senior Analyst, Office V, re: “Adequacy Determination in Antidumping Duty Second Sunset Review of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam,” dated April 21, 2016.

    Scope of the Order

    The merchandise subject to the order is certain frozen warmwater shrimp. The product is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) item numbers: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. Although the HTSUS numbers are provided for convenience and for customs purposes, the written product description, available in the Prelim Decision Memo, remains dispositive.3

    3 For a complete description of the Scope of the Order, see Memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, re: “Issues and Decision Memorandum for the Preliminary Results of Second Sunset Review of the Antidumping Duty Order on Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam,” dated concurrently with this notice (“Preliminary Decision Memorandum”).

    Analysis of Comments Received

    All issues raised for the preliminary results of this sunset review are addressed in the Preliminary Decision Memorandum, dated concurrently with this notice. The issues discussed in the Preliminary Decision Memorandum are the likelihood of continuation or recurrence of dumping, and the magnitude of the margins of dumping likely to prevail if these orders were revoked. The Preliminary Decision Memorandum is a public document and is on file electronically via the Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Preliminary Results of Review

    Pursuant to section 752(c) of the Act, we determine that revocation of the antidumping duty order on certain frozen warmwater shrimp from Vietnam would be likely to lead to continuation or recurrence of dumping at weighted average margins up to 25.76 percent.

    Interested parties may submit case briefs no later than 30 days after the date of publication of the preliminary results of this full sunset review, in accordance with 19 CFR 351.309(c)(1)(i). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than five days after the time limit for filing case briefs in accordance with 19 CFR 351.309(d). Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). A hearing, if requested, will be held two days after the date the rebuttal briefs are due. The Department will issue a notice of final results of this full sunset review, which will include the results of its analysis of issues raised in any such comments, no later than January 25, 2017.

    This five-year (“sunset”) review and notice are in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.218(f)(1).

    Dated: September 9, 2016. Christian Marsh, Acting Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum 1. Summary 2. History of the Order 3. Background 4. Scope of the Order 5. Discussion of the Issues a. Legal Framework b. Likelihood of Continuation of Recurrence of Dumping c. Magnitude of the Margin Likely to Prevail 6. Recommendation
    [FR Doc. 2016-22224 Filed 9-14-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE881 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Data Scoping Webinar for South Atlantic Red Grouper AGENCY:

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

    ACTION:

    Notice of SEDAR 53 Assessment Scoping and Assessment Webinars.

    SUMMARY:

    The SEDAR 53 assessment of the South Atlantic stock of red grouper will consist of a series Webinars.

    DATES:

    The SEDAR 53 Assessment Scoping Webinar will be held on Wednesday, October 12, 2016, from 9 a.m. to 12 p.m. The Assessment Webinars will begin at 1 p.m. on Wednesday, November 30, 2016, recess at 4 p.m. or when business is complete; and reconvene at 1 p.m. on Wednesday, January 11, 2017, and adjourn by 4 p.m. or when business is complete. To view the agenda, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Meeting Address: The Webinars are open to members of the public. Those interested in participating should contact Julia Byrd at SEDAR (see Contact Information below) to request an invitation providing Webinar access information. Please request Webinar invitations at least 24 hours in advance of each Webinar.

    SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405. www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. The product of the SEDAR Webinar series will be a report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses, and describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion in the Data Scoping Webinar are as follows:

    1. Participants will review data and discuss data issues, as necessary, and initial model issues.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least ten business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 12, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-22181 Filed 9-14-16; 8:45 am] BILLING CODE 3510-22-P
    COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities Under OMB Review AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.

    DATES:

    Comments must be submitted on or before October 17, 2016.

    ADDRESSES:

    Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (OIRA) in OMB, within 30 days of the notice's publication, by email at [email protected]. Please identify the comments by OMB Control No. 3038-0005. Please provide the Commission with a copy of all submitted comments at the address listed below. Please refer to OMB Reference No. 3038-0005 found on http://reginfo.gov. Comments may also be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Commodity Futures Trading Commission, 725 17th Street NW., Washington, DC 20503, and through the Agency's Web site at http://comments.cftc.gov. Follow the instructions for submitting comments through the Web site.

    Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand Delivery/Courier at the same address.

    A copy of the supporting statements for the collection of information discussed above may be obtained by visiting http://www.RegInfo.gov. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    Amanda Olear, Associate Director, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, (202) 418-5283; email: [email protected], and refer to OMB Control No. 3038-0005.

    SUPPLEMENTARY INFORMATION:

    Title: “Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission Merchants (OMB Control No. 3038-0005). This is a request for extension of a currently approved information collection.

    Abstract: Pursuant to the Commodity Exchange Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), Public Law 111-203, 124 Stat. 1376 (2010), the Commission promulgated rules and forms relating to registration and compliance with the Commission regulations applicable to intermediaries, and employees and principals thereof, operating in the futures, options, swaps, and retail forex markets. As part of the Commission's rulemaking effort, the Commission amended the compliance regime for Commodity Pool Operators, which is part of a previously approved information collection, through the adoption of a compliance regime applicable to Commodity Pool Operators of Registered Investment Companies, 78 FR 52308 (Aug. 22, 2013).

    The disclosure, filing, and recordkeeping requirements within part 4 of the Commission's regulations were established to assist customers, to facilitate the Commission and the National Futures Association (“NFA”) in monitoring compliance with the part 4 rules, and to enable the Commission to better monitor the market risks posed by the Commission's registrants. The information collections are necessary to enable the Commission and NFA to accomplish the purposes of the compliance regime set forth in part 4 enumerated above.

    The Commission did not receive any comments on the 60-day Federal Register notice, 81 FR 42668, dated June, 30, 2016.

    Burden Statement: The Commission is revising its estimate of the burden for this collection for Commodity Pool Operators and Commodity Trading Advisors to account for mathematical errors in the previous estimates for this information collection. The respondent burden for this collection is estimated to be as follows:

    Estimated Number of Respondents: 45,270.

    Estimated Average Burden Hours per Respondent: 8.08.1

    1 This has been rounded up slightly from 8.07886.

    Estimated Total Annual Burden Hours: 365,730.

    Frequency of Collection: Periodically.

    There are no capital costs or operating and maintenance costs associated with this collection related to the generation of the required information and the submission of the same to the Commission. (Authority: 44 U.S.C. 3501 et seq.) Dated: September 12, 2016. Robert N. Sidman, Deputy Secretary of the Commission.
    [FR Doc. 2016-22199 Filed 9-14-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2016-OS-0091] Privacy Act of 1974; System of Records AGENCY:

    Defense Logistics Agency, DoD.

    ACTION:

    Notice to alter a system of records.

    SUMMARY:

    Pursuant to the Privacy Act of 1974, and Office of Management and Budget (OMB) Circular No. A-130, notice is hereby given that the Defense Logistics Agency (DLA) proposes to alter a system of records, S375.80, entitled “DLA Telework Program Records” last published at 78 FR 17384, March 21, 2013. The system of records exists to administer the DLA Alternate Worksite/Telework program. Information on participation in the Telework Program, minus personal identifiers, is provided in management reports and to the DoD for a consolidated response to the Office of Personnel Management (OPM) annual data call. Portions of the records are also used to validate and reimburse participants for costs associated with telephone and Internet usage.

    This update reflects considerable administrative changes that in sum warrant an alteration to the systems of records notice. The applicable DoD Routine Uses have been incorporated in the notice to provide clarity for the public. Additionally, the categories of individuals has been updated to clearly identify the population of individuals who are included in the system of records and the categories of records has been updated to better define the information collected in the records. There are also modifications to system name, system location, authority, purpose, storage, retrievability, safeguards, retention and disposal, system manager(s) and address, notification procedure, record access procedures, and record source categories.

    DATES:

    Comments will be accepted on or before October 17, 2016. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    * Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    * Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Lewis Oleinick, Chief FOIA and Privacy Officer, DLA/FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221, or by phone at (703) 767-6194.

    SUPPLEMENTARY INFORMATION:

    The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at http://dpcld.defense.gov/.

    The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on August 26, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4 of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).

    Dated: September 12, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. S375.80 System name:

    DLA Telework Program Records (March 21, 2013, 78 FR 17384)

    Changes: System name:

    Delete entry and replace with “Defense Logistics Agency (DLA) Alternate Worksite/Telework Records.”

    System location:

    Delete entry and replace with “Office of the Director, Human Resources, Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Suite 3527, Fort Belvoir, VA 22060-6221, and DLA Primary Level Field Activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.”

    Categories of individuals covered by the system:

    Delete entry and replace with “Current DLA civilian employees having a DLA alternate worksite/telework record and former DLA civilian employees who have left the agency where the DLA alternate worksite/telework record was part of a personnel action.”

    Categories of records in the system:

    Delete entry and replace with “Records include individual's name; DoD ID number; position title, grade, and job series; last performance evaluation rating; duty station address and telephone number; approved telework address, telephone number(s), DLA telework request forms (DLA Telework Request and Approval Form, Telework Agreement, Self-Certification Home Safety Checklist, and Supervisor-Employee Checklist); approvals/disapprovals; description of government owned equipment and software provided to the teleworker; employee telework eligibility code, position telework eligibility code, telework employee training record, and position description number.”

    Authority for maintenance of the system:

    Delete entry and replace with “5 U.S.C. Ch. 65, Telework; DoD Instruction 1035.01, Telework Policy; and Defense Logistics Agency Instruction 7212, DLA Telework Program.”

    Purpose(s):

    Delete entry and replace with “Information is used by supervisors, program coordinators, DLA Information Operations and DLA Human Resources Services, Human Resources Information Systems for managing, evaluating, and reporting DLA Alternate Worksite/Telework Record activity/participation. Information on participation in the Telework Program, minus personal identifiers, is provided in management reports and to the DoD for a consolidated response to the Office of Personnel Management (OPM) annual data call.

    Portions of the records are also used to validate and reimburse participants for costs associated with telephone and internet usage.”

    Routine uses of records maintained in the system, including categories of users and the purposes of such uses:

    Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552(b)(3) as follows:

    To the Department of Labor when an employee is injured while teleworking, e.g., details of the telework arrangement may be disclosed.

    To DLA-affiliated unions to provide raw statistical data on the program. Disclosed information may include number of positions designated as eligible for telework by job title, series and grade; number of employees requesting telework; number approved for telework by the local activity. No personal identifiers or personally identifying data is provided.

    Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.

    Congressional Inquiries Disclosure Routine Use: Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.

    Disclosure to the Department of Justice for Litigation Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.

    Disclosure to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.

    Disclosure to the Merit Systems Protection Board Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the Merit Systems Protection Board, including the Office of the Special Counsel, for the purpose of litigation, including administrative proceedings, appeals, special studies of the civil service and other merit systems, review of OPM or component rules and regulations, investigation of alleged or possible prohibited personnel practices; and administrative proceedings involving any individual subject of a DoD investigation, and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.

    Data Breach Remediation Purposes Routine Use: A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.”

    Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:

    Storage:

    Delete entry and replace with “Electronic storage media and paper records.”

    Retrievability:

    Delete entry and replace with “Records are retrieved by employee's full name or DoD ID Number.”

    Safeguards:

    Delete entry and replace with “Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, and is accessible only to authorized personnel. Access to computerized data is restricted by passwords, which are changed periodically or by Common Access Cards (CACs). Access to records is limited to person(s) responsible for servicing the records in the performance of their official duties and who are properly screened and cleared for need-to-know. Individuals granted access to this system of records are required to have Information Assurance and Privacy Act training.

    Paper records are maintained in areas accessible only to DLA personnel who must use the records to perform their duties. Records are secured in locked or guarded buildings, locked offices, or locked cabinets during non-duty hours.”

    Retention and disposal:

    Delete entry and replace with “Destroy approved request 1 year after end of employee's participation in the program. Destroy disapproved request 1 year after request is rejected. Destroy other generated records when 1 year old, or when no longer needed, whichever is later.”

    System manager(s) and address:

    Delete entry and replace with “Office of the Director, Human Resources, Headquarters, Defense Logistics Agency (DLA), 8725 John J. Kingman Road, Suite 3527, Fort Belvoir, VA 22060-6221.”

    Notification procedure:

    Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.

    Inquiry should contain the record subject's full name and the DLA facility/activity where employee requested to participate in the DLA Telework Program.

    An unsworn declaration under penalty of perjury in accordance with section 1746 of 28 U.S.C. or notarized signatures are acceptable as a means of proving the identity of the individual.

    If an unsworn declaration is executed within the United States, its territories, possessions, or commonwealths, it shall read `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'

    If an unsworn declaration is executed outside the United States, it shall read `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).' ”

    Record access procedures:

    Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.

    Inquiry should contain the record subject's full name and the DLA facility/activity where employee requested to participate in the DLA Telework Program.

    An unsworn declaration under penalty of perjury in accordance with section 1746 of 28 U.S.C. or notarized signatures are acceptable as a means of proving the identity of the individual.

    If an unsworn declaration is executed within the United States, its territories, possessions, or commonwealths, it shall read `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'

    If an unsworn declaration is executed outside the United States, it shall read `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).' ”

    Record source categories:

    Delete entry and replace with “Information is supplied by the record subject, supervisors, and information technology offices, including automated Human Resources and timekeeping systems.”

    [FR Doc. 2016-22236 Filed 9-14-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Army; Corps of Engineers Meeting of the Chief of Engineers Environmental Advisory Board AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice of open Federal advisory committee meeting.

    SUMMARY:

    The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Chief of Engineers, Environmental Advisory Board (EAB). This meeting is open to the public. For additional information about the EAB, please visit the committee's Web site at http://www.usace.army.mil/Missions/Environmental/EnvironmentalAdvisoryBoard.aspx.

    DATES:

    The meeting will be held from 9:00 a.m. to 12:00 p.m. on October 18, 2016. Public registration will begin at 8:30 a.m.

    ADDRESSES:

    The EAB meeting will be conducted at The Sheraton Pittsburgh Hotel at Station Square; 300 W. Station Square Dr.; Pittsburgh, PA 15219; (412) 261-2000.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Mindy M. Simmons, the Designated Federal Officer (DFO) for the committee, in writing at U.S. Army Corps of Engineers, ATTN: CECW-P, 441 G St. NW.; Washington, DC 20314; by telephone at 202-761-4127; and by email at [email protected] Alternatively, contact Ms. Anne Cann, the Alternate Designated Federal Officer (ADFO), in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR-GW, 7701 Telegraph Road, Casey Building, Alexandria, VA 22315-3868; by telephone at 703-428-7166; and by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.

    Purpose of the Meeting: The EAB will advise the Chief of Engineers on environmental policy, identification and resolution of environmental issues and missions, and addressing challenges, problems, and opportunities in an environmentally responsible manner. The EAB is interested in written and verbal comments from the public relevant to these purposes.

    Proposed Agenda: At this meeting the agenda will include introduction between the new Chief of Engineers to the Board, an update from USACE on implementation of past EAB recommendations, how the host USACE district is “Living the Environmental Operating Principles”; and discussions and presentations on ongoing work plan efforts with a discussion of potential future tasks, such as aging infrastructure and aquatic ecosystem integrity, and monitoring and adaptive management.

    Availability of Materials for the Meeting. A copy of the agenda or any updates to the agenda for the October 18, 2016 meeting will be available at the meeting. The final version will be provided at the meeting. All materials will be posted to the Web site after the meeting.

    Public Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165, and subject to the availability of space, this meeting is open to the public. Registration of members of the public who wish to attend the meeting will begin at 8:30 a.m. on the day of the meeting. Seating is limited and is on a first-to-arrive basis. Attendees will be asked to provide their name, title, affiliation, and contact information to include email address and daytime telephone number at registration. Any interested person may attend the meeting, file written comments or statements with the committee, or make verbal comments from the floor during the public meeting, at the times, and in the manner, permitted by the committee, as set forth below.

    Special Accommodations: The meeting venue is fully handicap accessible, with wheelchair access. Individuals requiring special accommodations to access the public meeting or seeking additional information about public access procedures, should contact Ms. Simmons, the committee DFO, or Ms. Cann, the ADFO, at the email addresses or telephone numbers listed in the FOR FURTHER INFORMATION CONTACT section, at least five (5) business days prior to the meeting so that appropriate arrangements can be made.

    Written Comments or Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the EAB about its mission and/or the topics to be addressed in this public meeting. Written comments or statements should be submitted to Ms. Simmons, the committee DFO, or Ms. Cann, the committee ADFO, via electronic mail, the preferred mode of submission, at the addresses listed in the FOR FURTHER INFORMATION CONTACT section in the following formats: Adobe Acrobat or Microsoft Word. The comment or statement must include the author's name, title, affiliation, address, and daytime telephone number. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the committee DFO or ADFO at least five (5) business days prior to the meeting so that they may be made available to the EAB for its consideration prior to the meeting. Written comments or statements received after this date may not be provided to the EAB until its next meeting. Please note that because the EAB operates under the provisions of the Federal Advisory Committee Act, as amended, all written comments will be treated as public documents and will be made available for public inspection.

    Verbal Comments: Members of the public will be permitted to make verbal comments during the meeting only at the time and in the manner allowed herein. If a member of the public is interested in making a verbal comment at the open meeting, that individual must submit a request, with a brief statement of the subject matter to be addressed by the comment, at least three (3) business days in advance to the committee DFO or ADFO, via electronic mail, the preferred mode of submission, at the addresses listed in the FOR FURTHER INFORMATION CONTACT section. The committee DFO and ADFO will log each request to make a comment, in the order received, and determine whether the subject matter of each comment is relevant to the EAB's mission and/or the topics to be addressed in this public meeting. A 15-minute period near the end of meeting will be available for verbal public comments. Members of the public who have requested to make a verbal comment and whose comments have been deemed relevant under the process described above, will be allotted no more than three (3) minutes during this period, and will be invited to speak in the order in which their requests were received by the DFO and ADFO.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2016-22062 Filed 9-14-16; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF ENERGY Request for Public Comment on the Draft Report Entitled Designing a Consent-Based Siting Process: Summary of Public Input AGENCY:

    Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.

    ACTION:

    Notice of public comment period.

    SUMMARY:

    The U.S. Department of Energy (DOE) is designing a consent-based siting process to establish an integrated waste management system to transport, store, and dispose of commercial spent nuclear fuel and high-level defense radioactive waste. In a consent-based siting approach, DOE will work with communities, tribal governments and states across the country that express interest in hosting any of the facilities identified as part of an integrated waste management system. As part of this process, the Department issued an Invitation for Public Comment in the Federal Register on December 23, 2015 and hosted eight public meetings across the United States in 2016 to seek input on the elements that should be considered in the development of a consent-based siting process. Information gathered via the Invitation for Public Comment and Public Meetings is summarized in the draft report “Designing a Consent-Based Siting Process: Summary of Public Input,” located at energy.gov/consentbasedsiting. DOE will consider all comments and issue a final report in December 2016.

    DATES:

    The 45-day public comment period begins September 15, 2016 and ends October 30, 2016. Comments must be received on or before 11:59 p.m. EDT, October 30, 2016 to be considered in the final report.

    ADDRESSES:

    You may submit comments on the draft report by any of the following methods:

    Email: Responses may be provided by email to [email protected] Please submit electronic comments in Microsoft Word, or PDF file format, and avoid the use of special characters or any form of encryption.

    Mail: Responses may be provided by mail to the following address: U.S. Department of Energy, Office of Nuclear Energy, Draft Consent-Based Siting Report, 1000 Independence Ave. SW., Washington, DC 20585.

    Fax: Responses may be faxed to 202-586-0544. Please include “Draft Consent-based Siting Report” on the fax cover page.

    Online: Responses will be accepted online at www.regulations.gov.

    Data collected via the mechanisms listed above will not be protected from the public view in any way. Individual commentors' names and addresses (including email addresses) received as part of this Request for Public Comment are part of the public record. DOE plans to reproduce comment documents in their entirety, as appropriate, and to post all comment documents received in their entirety at energy.gov/consentbasedsiting. Any person wishing to have his/her address, email address, or other identifying information withheld from the public record of comment documents must state this request prominently at the beginning of any comment document, or else no redactions will be made.

    FOR FURTHER INFORMATION CONTACT:

    Requests for further information should be sent to Mr. Andrew Griffith via [email protected]

    SUPPLEMENTARY INFORMATION:

    General Information: Where can I obtain a copy of the draft report “Designing a Consent-Based Siting Process: Summary of Public Input”?

    All documents in the docket are listed in the www.regulations.gov index. You may also download a copy of the draft report at energy.gov/consentbasedsiting.

    Issued in Washington, DC, on September 13, 2016. Melissa Bates, Acting Team Leader, Nuclear Fuels Storage and Transportation Planning Project, Office of Nuclear Energy, Department of Energy.
    [FR Doc. 2016-22312 Filed 9-13-16; 4:15 pm] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC16-177-000.

    Applicants: International Transmission Company.

    Description: Application for Approval of Acquisition of Assets under FPA Section 203 of International Transmission Company.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5101.

    Comments Due: 5 p.m. ET 9/30/16.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG16-147-000.

    Applicants: Grant Plains Wind, LLC.

    Description: Grant Plains Wind, LLC submits Notice of Self-Certification as an Exempt Wholesale Generator.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5295.

    Comments Due: 5 p.m. ET 9/29/16.

    Docket Numbers: EG16-148-000.

    Applicants: Sunflower Wind Project, LLC.

    Description: Notice of Self-Certification of EG of Sunflower Wind Project, LLC.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5302.

    Comments Due: 5 p.m. ET 9/29/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER16-2501-001.

    Applicants: Nicolis, LLC.

    Description: Tariff Amendment: Amendment to Application for MBR to be effective 8/30/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5141.

    Comments Due: 5 p.m. ET 9/23/16.

    Docket Numbers: ER16-2502-001.

    Applicants: Tropico, LLC.

    Description: Tariff Amendment: Amendment to Application for MBR Filing to be effective 8/30/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5138.

    Comments Due: 5 p.m. ET 9/23/16.

    Docket Numbers: ER16-2569-000.

    Applicants: The Dayton Power and Light Company.

    Description: Baseline eTariff Filing: DP&L Reactive Power Tariff Filing to be effective 11/8/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5104.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2570-000.

    Applicants: AES Ohio Generation, LLC.

    Description: § 205(d) Rate Filing: AES Ohio Generation Reactive Power Tariff Filing to be effective 11/8/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5109.

    Comments Due: 5 p.m. ET 9/30/16.

    Take notice that the Commission received the following PURPA 210(m)(3) filings:

    Docket Numbers: QM16-5-000.

    Applicants: Oklahoma Municipal Power Authority.

    Description: Application to Terminate Mandatory PURPA Purchase Obligation in the Southwest Power Pool of Oklahoma Municipal Power Authority.

    Filed Date: 9/8/16.

    Accession Number: 20160908-5297.

    Comments Due: 5 p.m. ET 10/7/16.

    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 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22201 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Effectiveness of Exempt Wholesale Generator Status Tyler Bluff Wind Project, LLC EG16-109-000 Kelly Creek Wind, LLC EG16-110-000 Great Western Wind Energy, LLC EG16-111-000 Salt Fork Wind, LLC EG16-112-000 Mariah del Norte LLC EG16-113-000 Kingman Wind Energy I, LLC EG16-114-000 Kingman Wind Energy II, LLC EG16-115-000 Rush Springs Wind Energy, LLC EG16-116-000 Innovative Owner 43, LLC EG16-117-000 Western Antelope Blue Sky Ranch B LLC EG16-118-000 Antelope DSR 2, LLC EG16-119-000 Western Antelope Dry Ranch LLC EG16-120-000 North Star Solar PV LLC EG16-121-000 Hancock Wind, LLC EG16-122-000 Five Points Solar Park LLC EG16-124-000 BNB Lamesa Solar LLC EG16-125-000

    Take notice that during the month of August 2016, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a).

    Dated: September 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22203 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2561-000] Sunflower Wind Project, 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 Sunflower Wind Project, 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 29, 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 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22205 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2567-000] Median Energy Corp.; 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 Median Energy Corp.'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 29, 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 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22206 Filed 9-14-16; 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: EC16-178-000.

    Applicants: Wisconsin River Power Company, Wisconsin Public Service Corporation, Wisconsin Power and Light Company.

    Description: Application of Wisconsin River Power Company, et al. for Approval of Transaction Under Section 203(a)(1) of the Federal Power Act.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5322.

    Comments Due: 5 p.m. ET 9/30/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-3140-026.

    Applicants: Birchwood Power Partners, L.P., Shady Hills Power Company, L.L.C., EFS Parlin Holdings, LLC, Inland Empire Energy Center, LLC, Homer City Generation, L.P.

    Description: Supplement to June 28, 2016 Triennial Market Power Analysis of Inland Empire Energy Center, LLC.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5198.

    Comments Due: 5 p.m. ET 11/8/16.

    Docket Numbers: ER11-3013-006; ER10-2870-007; ER10-2865-007.

    Applicants: Coolidge Power LLC, TransCanada Power Marketing Ltd, TransCanada Energy Sales Ltd.

    Description: Second Amendment to June 28, 2016 Updated Market Power Analysis for the Southwest Region of the TransCanada Entities et al.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5226.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2571-000.

    Applicants: New York State Electric & Gas Corporation, New York Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: SA No. 2298 CRA between NYSEG and Penelec to be effective 8/19/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5199.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2572-000.

    Applicants: American Transmission Systems, Incorporated, Metropolitan Edison Company, Pennsylvania Electric Company, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original Service Agreement Nos. 4480, 4481, 4482, 4483, 4484, 4532, and 4533 to be effective 10/1/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5235.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2573-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Service Agreement No. 4527 and Notice of Cancellation to be effective 8/10/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5242.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2574-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Notice of Cancellation of Service Agreement No. 3780, Queue No. W4-045 to be effective 7/26/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5250.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2575-000.

    Applicants: New England Power Company.

    Description: Tariff Cancellation: Notice of Cancellation of Superseded Agreements with Wheelabrator Saugus Inc. to be effective 11/9/2016.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5270.

    Comments Due: 5 p.m. ET 9/30/16.

    Docket Numbers: ER16-2576-000.

    Applicants: UGI Energy Services, Inc.

    Description: § 205(d) Rate Filing: Notice of Succession to be effective 10/1/2013.

    Filed Date: 9/9/16.

    Accession Number: 20160909-5295.

    Comments Due: 5 p.m. ET 9/30/16.

    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 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22202 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM16-17-000] Data Collection for Analytics and Surveillance and Market-Based Rate Purposes; Notice of Posting of Staff's Technical Workshop Notes

    On August 11, 2016, Commission staff held a technical workshop to review the draft data dictionary attached to the Notice of Proposed Rulemaking in this docket (RM16-17).1 The workshop provided a forum for interactive, detailed discussion of the elements contained in the draft data dictionary.

    1Data Collection for Analytics and Surveillance and Market-Based Rate Purposes, FERC Stats. & Regs. ¶ 32,717 (2016).

    This notice announces that Staff's notes on the technical workshop have been posted to the Commission's Web site. These notes are an informal summary of the key points from the workshop and are not intended to be an official transcript of the proceedings. The notes can be found on the event page for the workshop under the `Related Files' heading. A link to the event page is provided below: http://www.ferc.gov/EventCalendar/EventDetails.aspx?ID=8416&CalType=%20&CalendarID=116&Date=08/11/2016&View=Listview.

    For additional information, please contact David Pierce of FERC's Office of Enforcement at (202) 502-6454 or send an email to [email protected]

    Dated: September 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22207 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL16-111-000; QF15-792-001] SunE M5B Holdings, LLC; SunE M5B Holdings, LLC; Notice of Petiton for Declaratory Order

    Take notice that on September 7, 2016, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure,1 SunE M5B Holdings, LLC filed a petition for declaratory order providing limited waiver of the filing requirements applicable to small power production facilities set forth in Section 292.203(a)(3) of the Commission's regulations,2 all as more fully explained in the petition.

    1 18 CFR 385.207 (2016).

    2 18 CFR 292.203(a)(3).

    Any person desiring to intervene or to protest in this proceeding must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. 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 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 proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also 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 28, 2016.

    Dated: September 9, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22204 Filed 9-14-16; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9952-46-OECA] National Environmental Justice Advisory Council; Notice of Charter Renewal AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of charter renewal.

    Notice is hereby given that the Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2, the National Environmental Justice Advisory Council (NEJAC) is a necessary committee which is in the public interest. Accordingly, NEJAC will be renewed for an additional two-year period. The purpose of the NEJAC is to provide advice and recommendations to the Administrator about issues associated with integrating environmental justice concerns into EPA's outreach activities, public policies, science, regulatory, enforcement, and compliance decisions.

    Inquiries may be directed to Matthew Tejada, NEJAC Designated Federal Officer, U.S. EPA, 1200 Pennsylvania Avenue NW., (Mail Code 2201A), Washington, DC 20460.

    Dated: August 4, 2016. Larry Starfield, Principal Deputy Assistants Administrator, Office of Enforcement and Compliance Assurance.
    [FR Doc. 2016-22220 Filed 9-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9952-14-OA] Children's Health Protection Advisory Committee AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Request for nominations to the Children's Health Protection Advisory Committee.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) invites nominations from a range of qualified candidates for consideration for appointment to its Children's Health Protection Advisory Committee (CHPAC). The EPA anticipates filling vacancies by March 1, 2017. The EPA may also use sources in addition to this Federal Register Notice to solicit nominees.

    Background: The Children's Health Protection Advisory Committee is chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463. EPA established this Committee in 1997 to provide independent advice to the EPA Administrator on a broad range of environmental issues affecting children's health.

    The EPA Administrator appoints members for three-year terms with a cap on service at six years. The Committee meets 2-3 times annually and the average workload is approximately 10 to 15 hours per month. EPA provides reimbursement for travel and other incidental expenses associated with official government business, but members must be able to cover expenses prior to reimbursement.

    The CHPAC is looking for representatives from the private sector, academia non-governmental organizations, public-health practitioners, pediatricians, obstetric professionals, occupational medicine practitioners and community nurses. We are also seeking representatives from environmental groups, health groups, health research, the fields of epidemiology and toxicology, and tribal, state, county and local government.

    We are looking for experience in children's environmental health policy, research, and in specific issues such as lead poisoning and asthma, prenatal environmental exposures, chemical exposures, public health information tracking, knowledge of EPA regulation development, risk assessment, exposure assessment, tribal children's environmental health and children's environmental health disparities. The EPA encourages nominations from all racial and ethnic groups.

    The EPA will use the following criteria to evaluate nominees:

    —The ability of candidate to effectively contribute to discussions and provide useful recommendations on the following issues:
    Risk assessment, exposure assessment and children's health; Air quality, both indoor and outdoor, regulations, policies, outreach and communication; Water quality, regulations, policies, outreach and communication; Prenatal exposures and health outcomes; Chemical exposures, pesticide exposures, health outcomes, policy and regulation; Asthma disparities and other environmental health disparities; Data and information collection issues; Lead, mercury and other heavy metal concerns for children's health; Exposures that affect children's health in homes, schools, and child care centers; Building capacity among health providers to prevent, diagnose and treat environmental health conditions in children. —The background and experience that would contribute to the diversity of perspectives on the committee (e.g., geographic, economic, social, cultural, educational, and other considerations). —Ability to volunteer time to attend meetings 2-3 times a year in Washington DC, participate in teleconference meetings, develop recommendations to the Administrator, and prepare reports and advice letters.

    Nominations must include:

    • Brief statement describing the nominee's interest in serving on the CHPAC.

    • Short biography (no more than one page) describing the professional and educational qualifications, including a list of relevant activities, and any current or previous service on federal advisory committees.

    • Attestation that nominee is not a lobbyist.

    • Statement about the perspective and diversity the nominee brings to the committee.

    • Current contact information for the nominee, including the nominee's name, organization (and position within that organization), current business address, email address, and daytime telephone number.

    • Candidates may self-nominate; one letter of support is welcome.

    Submit nominations by September 27, 2016 by email to [email protected] or mail to Martha Berger, Designated Federal Officer, Office of Children's Health Protection, U.S. Environmental Protection Agency, Mail Code 1107T, 1301 Constitution Avenue NW., Washington, DC 20460.

    FOR FURTHER INFORMATION CONTACT:

    Martha Berger, Designated Federal Officer, U.S. EPA; telephone (202) 564-2191 or [email protected]

    Dated: September 6, 2016. Martha Berger, Designated Federal Officer.
    [FR Doc. 2016-22124 Filed 9-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9952-40-OA] Notification of a Closed Teleconference of the Chartered Science Advisory Board AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency's (EPA), Science Advisory Board (SAB) Staff Office is announcing a teleconference of the Chartered SAB to conduct a review of a draft report of recommendations regarding the agency's 2016 Scientific and Technological Achievement Awards (STAA). The Chartered SAB teleconference will be closed to the public.

    DATES:

    The Chartered SAB teleconference date is Thursday, October 11, 2016, from 1:00 p.m. to 2:30 p.m. (Eastern Time).

    ADDRESSES:

    The Chartered SAB closed teleconference will take place via telephone only. General information about the SAB may be found on the SAB Web site at http://www.epa.gov/sab.

    FOR FURTHER INFORMATION CONTACT:

    Members of the public who wish to obtain further information regarding this announcement may contact Mr. Thomas Carpenter, Designated Federal Officer, by telephone: (202) 564-4885 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Pursuant to section 10(d) of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and section (c)(6) of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6), the EPA has determined that the chartered SAB quality review teleconference will be closed to the public. The purpose of the teleconference is for the chartered SAB to conduct a review of a draft SAB advisory report of recommendations regarding the agency's 2016 STAA. The Chartered SAB teleconference will be closed to the public.

    Quality review is a key function of the chartered SAB. Draft reports prepared by SAB committees, panels, or work groups must be reviewed and approved by the chartered SAB before transmittal to the EPA Administrator. The chartered SAB makes a determination in a meeting consistent with FACA about all draft reports and determines whether the report is ready to be transmitted to the EPA Administrator.

    At the teleconference, the chartered SAB will conduct a review of draft report developed by an SAB committee charged with developing recommendations regarding the agency's 2016 STAA. (for more information, see http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/STAA-2016-2018?OpenDocument.

    The STAA awards are established to honor and recognize EPA employees who have made outstanding contributions in the advancement of science and technology through their research and development activities, as exhibited in publication of their results in peer reviewed journals. I have determined that the Chartered SAB quality review teleconference will be closed to the public because it is concerned with recommending employees deserving of awards. In making these draft recommendations, the EPA requires full and frank advice from the SAB. This advice will involve professional judgments on the relative merits of various employees and their respective work. Such personnel matters involve the discussion of information that is of a personal nature, the disclosure of which would be a clearly unwarranted invasion of personal privacy and, therefore, is protected from disclosure by section (c)(6) of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6). Minutes of the Chartered SAB teleconference will be certified by the chair and retained in the public record.

    Dated: September 7, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-22231 Filed 9-14-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9952-51-Region 6] Public Water System Supervision Program Revision for the State of New Mexico AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of tentative approval.

    SUMMARY:

    Notice is hereby given that the State of New Mexico is revising its approved Public Water System Supervision (PWSS) program. New Mexico has adopted the Revised Total Coliform Rule (RTCR) by reference under 20.7.10.100 of the New Mexico Administrative Code and Regulations Pertaining to Public Water Systems. EPA has determined that the RTCR primacy application submitted by New Mexico is no less stringent than the corresponding federal regulations. Therefore, EPA intends to approve this PWSS program revision package.

    DATES:

    All interested parties may request a public hearing. A request for a public hearing must be submitted by October 17, 2016 to the Regional Administrator at the EPA Region 6 address shown below. Frivolous or insubstantial requests for a hearing may be denied by the Regional Administrator. However, if a substantial request for a public hearing is made by October 17, 2016, a public hearing will be held. If no timely and appropriate request for a hearing is received and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on October 17, 2016. Any request for a public hearing shall include the following information: The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; a brief statement of the requesting person's interest in the Regional Administrator's determination and a brief statement of the information that the requesting person intends to submit at such hearing; and the signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

    ADDRESSES:

    All documents relating to this determination are available for inspection between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, at the following offices: New Mexico Environment Department, Drinking Water Bureau, Harold Runnels Building, 190 St. Francis Dr., Suite S2120, Santa Fe, New Mexico 87505; and United States Environmental Protection Agency, Region 6, Drinking Water Section (6WQ-SD), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202. Copies of the documents which explain the rule can also be obtained at EPA's Web site at https://www.federalregister.gov/articles/2013/02/13/2012-31205/national-primary-drinking-water-regulations-revisions-to-the-total-coliform-rule and https://www.federalregister.gov/articles/2014/02/26/2014-04173/national-primary-drinking-water-regulations-minor-corrections-to-the-revisions-to-the-total-coliform, or by writing or calling Ms. Evelyn Rosborough at the address below.

    FOR FURTHER INFORMATION CONTACT:

    For further information contact Evelyn Rosborough, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733, telephone (214) 665-7515, facsimile (214) 665-6490, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Authority: Section 1413 of the Safe Drinking Water Act, as amended (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.

    Dated: September 2, 2016. Ron Curry, Regional Administrator, Region 6.
    [FR Doc. 2016-22237 Filed 9-14-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0779] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before November 14, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Cathy Williams, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0779.

    Title: Sections 90.20(a)(1)(iii), 90.769, 90.767, 90.763(b)(l)(i)(a), 90.763(b)(l)(i)(B), 90.771(b) and 90.743, Rules for Use of the 220 MHz Band by the Private Land Mobile Radio Service.

    Form Number: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit entities, not-for-profit institutions, and state, local or tribal government.

    Number of Respondents: 140 respondents; 670 responses.

    Estimated Time per Response: 2 hours to 20 hours.

    Frequency of Response: On occasion reporting requirement and third party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in 47 U.S.C. 154(i), 303(g), 303(r) and 332(a).

    Total Annual Burden: 5,886 hours.

    Total Annual Cost: $135,000.

    Privacy Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is a need for confidentiality with this collection of information.

    Needs and Uses: The Commission will submit this expiring collection to the Office of Management and Budget (OMB) for approval. The Commission is requesting approval for an extension of information collection 3060-0779.

    The collection includes rules to govern the future operation and licensing of the 220-222 MHz and (220 MHz service). In establishing this licensing plan, FCC's goal is to establish a flexible regulatory framework that allows for efficient licensing of the 220 MHz service, eliminates unnecessary regulatory burdens, and enhances the competitive potential of the 220 MHz service in the mobile service marketplace. However, as with any licensing and operational plan for a radio service, a certain number of regulatory and information burdens are necessary to verify licensee compliance with FCC rules.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of Secretary.
    [FR Doc. 2016-22195 Filed 9-14-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0473, 3060-0423 and 3060-0626] Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written PRA comments should be submitted on or before November 14, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Cathy Williams, FCC, via email [email protected] and to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    OMB Control Number: 3060-0473.

    Title: Section 74.1251, Technical and Equipment Modifications.

    Type of Review: Extension of a currently approved collection.

    Respondents: Businesses or other for-profit entities; not-for-profit institutions.

    Number of Respondents and Responses: 100 respondents; 300 responses.

    Estimated Time per Response: 0.25 hour.

    Frequency of Response: Recordkeeping requirement; One-time reporting requirement.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contain in Sections 154(i) and 325(a) of the Communications Act of 1934, as amended.

    Total Annual Burden: 75 hours.

    Total Annual Cost: None.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Needs and Uses: 47 CFR 74.1251(b)(1) states that formal application on FCC Form 349 is required of all permittees and licensees for any of the following changes: Replacement of the transmitter as a whole, except replacement with a transmitter of identical power rating which has been certificated by the FCC for use by FM translator or FM booster stations, or any change which could result in the electrical characteristics or performance of the station. Upon the installation or modification of the transmitting equipment for which prior FCC authority is not required under the provisions of this paragraph, the licensee shall place in the station records a certification that the new installation complies in all respects with the technical requirements of this part and the terms of the station authorization.

    47 CFR 74.1251(c) requires FM translator licensee to notify the FCC, in writing, of changes in the primary FM station being retransmitted.

    OMB Control Number: 3060-0423.

    Title: Section 73.3588, Dismissal of Petitions to Deny or Withdrawal of Informal Objections.

    Type of Review: Extension of a currently approved collection.

    Respondents: Businesses or other for-profit entities.

    Number of Respondents and Responses: 50 respondents; 50 responses.

    Estimated Time per Response: 20 minutes.

    Frequency of Response: On occasion reporting requirement.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is Section 154(i) of the Communications Act of 1934, as amended.

    Total Annual Burden: 17 hours.

    Total Annual Cost: $63,750.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

    Needs and Uses: 47 CFR 73.3588 states whenever a petition to deny or an informal objection has been filed against any applications for renewal, new construction permits, modifications, and transfers/assignments, and the filing party seeks to dismiss or withdraw the petition to deny or the informal objection, either unilaterally or in exchange for financial consideration, that party must file with the Commission a request for approval of the dismissal or withdrawal. This request must include the following documents: (1) A copy of any written agreement related to the dismissal or withdrawal, (2) an affidavit stating that the petitioner has not received any consideration in excess of legitimate and prudent expenses in exchange for dismissing/withdrawing its petition, (3) an itemization of the expenses for which it is seeking reimbursement, and (4) the terms of any oral agreements related to the dismissal or withdrawal of the petitions to deny. Each remaining party to any written or oral agreement must submit an affidavit within 5 days of petitioner's request for approval stating that it has paid no consideration to the petitioner in excess of the petitioner's legitimate and prudent expenses. The affidavit must also include the terms of any oral agreements relating to the dismissal or withdrawal of the petition to deny.

    OMB Control No.: 3060-0626.

    Title: Section 90.483, Permissible Methods and Requirements of Interconnecting Private and Public Systems of Communications.

    Form No.: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business of other for-profit entities.

    Number of Respondents and Responses: 100 respondents; 100 responses.

    Estimated Time per Response: 1 hour.

    Frequency of Response: On occasion reporting requirements; Third party disclosure requirement.

    Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

    Total Annual Burden: 100 hours.

    Annual Cost Burden: None.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this collection.

    Needs and Uses: When a frequency is shared by more than one system, automatic monitoring equipment must be installed at the base station to prevent activation of the transmitter when signals of co-channel stations are present and activation would interfere with communications in progress. Licensees may operate without the monitoring equipment if they have obtained the consent of all co-channel licensees located within a 120 kilometer (75 mile) radius of the interconnected base station transmitter. A statement must be submitted to the Commission indicating that all co-channel licensees have consented to operate without the monitoring equipment. This information is necessary to ensure that licensees comply with the Commission's technical and operational rules, and to prevent activation of the transmitter when signals of co-channel stations are present and could possibly interfere with communications in process.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of Secretary.
    [FR Doc. 2016-22194 Filed 9-14-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL MARITIME COMMISSION Sunshine Act Meeting AGENCY HOLDING THE MEETING:

    Federal Maritime Commission.

    TIME AND DATE:

    September 20, 2016; 10:00 a.m.

    PLACE:

    800 N. Capitol Street NW., First Floor Hearing Room, Washington, DC.

    STATUS:

    The first portion of the meeting will be held in Open Session; the second in Closed Session.

    MATTERS TO BE CONSIDERED:

    Open Session 1. Briefing by Commissioner Maffei on U.S./Japan Bilateral Discussions 2. Staff Briefing on Foreign-based NVOCC Registration Renewal Process (Form FMC-65) Closed Session 1. Staff Briefing on Hanjin Shipping Bankruptcy and Shipping Disruptions 2. Staff Briefing on the Maersk/MSC Vessel Sharing Agreement, FMC Agreement No. 012293 CONTACT PERSON FOR MORE INFORMATION:

    Rachel E. Dickon, Assistant Secretary, (202) 523-5725.

    Rachel E. Dickon, Assistant Secretary.
    [FR Doc. 2016-22299 Filed 9-13-16; 4:15 pm] BILLING CODE 6730-AA-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention [CDC-2016-0090, Docket Number NIOSH 288-A] A Performance Test Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous Drugs AGENCY:

    National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of public meeting and request for public comment on a draft testing protocol.

    SUMMARY:

    The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) announces a public meeting concerning a universal closed system drug-transfer device (CSTD) testing protocol entitled, A Performance Test Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous Drugs, http://www.cdc.gov/niosh/topics/hazdrug/default.html/.

    This is an opportunity for public comment on the protocol, the proposed list of surrogates, and to respond to NIOSH questions regarding the protocol.

    To view the protocol and related materials, visit www.regulations.gov and enter CDC-2016-0090 in the search field and click “Search.”

    Table of Contents I. Background II. Protocol III. Public Meeting
    DATES:

    The public meeting will be held on November 7, 2016, 9:00 a.m.-3:00 p.m. Eastern Time, or until after the last public commenter has spoken, whichever occurs first. Electronic or written comments must be received by December 7, 2016.

    ADDRESSES:

    The public meeting will be held at the Alice Hamilton Laboratories, Conference Room C, 5555 Ridge Avenue, Cincinnati, OH 45213. Virtual attendance using LiveMeeting and audio conference will be available.

    You may submit written comments, identified by CDC-2016-0090 and Docket Number NIOSH 288-A, by either of the following two methods:

    Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    Mail: National Institute for Occupational Safety and Health, NIOSH Docket Office, 1090 Tusculum Avenue, MS C-34, Cincinnati, Ohio 45226-1998.

    Instructions: All information received in response to this notice must include the agency name and docket number [CDC-2016-0090; NIOSH 288-A]. All relevant comments received will be posted without change to http://www.regulations.gov, including any personal information provided. All information received in response to this notice will also be available for public examination and copying at the NIOSH Docket Office, 1150 Tusculum Avenue, Room 155, Cincinnati, OH 45226-1998.

    FOR FURTHER INFORMATION CONTACT:

    Deborah V. Hirst, NIOSH, Division of Applied Research and Technology, Alice Hamilton Laboratories, 1090 Tusculum Ave., MS R-5, Cincinnati, OH 45226. (513) 841-4141 (not a toll free number) or email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background: Closed system drug-transfer devices (CSTDs) are generally available in two design types: (1) One that uses a physical barrier to block the unintended release of drug into the surrounding environment or the intake of environmental contaminants into the sterile drug pathway and (2) one that uses air cleaning or filtration technologies to prevent the unintended release of drug into the surrounding environment or the intake of environmental contaminants into the sterile drug pathway. On September 8, 2015, NIOSH released the draft test protocol, A Vapor Containment Performance Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous Drugs, for public review. The draft protocol was developed by NIOSH to evaluate how containment effective the physical barrier-type CSTDs were as an indicator of how protective they would be at preventing hazardous drug escape from the closed system. After significant public comment and several inquiries, on January 19, 2016, NIOSH published a Request for Information for the development of a test protocol to evaluate the performance of CSTDs that adopt air-cleaning or filtration technologies. Since the Federal Register docket for both the draft protocol and the request for information closed on March 8, 2016, NIOSH has done the following:

    a. Generated a list of surrogates to test both types of CSTDs.

    b. Met individually with CSTD manufacturers who requested informal meetings to discuss the current draft protocol and/or items NIOSH should consider in developing a new performance test protocol for air-cleaning CSTDs. This was in answer to NIOSH's Request for Information question #12, Are you interested in being a collaborative partner with NIOSH on the development of an air cleaning or filtration technologies CSTD test protocol?

    c. Drafted a new universal performance test protocol applicable to both barrier and air-cleaning types of CSTDs.

    II. Protocol: The proposed protocol will apply to both barrier and air-cleaning types of CSTDs, NIOSH will host a public meeting to give an update of new protocol developments. The update will include discussions covering proposed drug surrogates, benefits, and challenges with developing a new universal test protocol, and to allow the public to comment. Special emphasis will be placed upon the following:

    Proposed surrogates: Surrogates were identified based on vapor pressure and water solubility. Drug surrogates were chosen with vapor pressures up to 100 times that of the most volatile drug vapor pressure known to exist on the NIOSH hazardous drug list. The increased surrogate vapor pressure should offer a safety factor to the test protocol.

    ○ Is the 100 times the vapor pressure safety factor adequate?

    ○ Should other chemical properties besides vapor pressure and water solubility be considered?

    ○ Are there other surrogates NIOSH should consider for testing the performance of CSTDs?

    ○ Will any of the NIOSH's list of proposed surrogates cause damage to the CSTD plastic and/or parts (i.e., needles, septum, etc.)?

    ○ Are there other aspects specific to air cleaning technologies that are not being challenged with the proposed surrogate testing protocol?

    ○ Are there other aspects specific to the barrier CSTD technologies that are not being adequately challenged with the proposed surrogate testing protocol?

    Sampling Strategy: The new draft protocol relies upon analytical chemistry analysis of at least two simultaneously-collected sorbent tube air samples to detect drug surrogate escape from the CSTD.

    ○ Should less or more sampling tubes be used inside the environmental test chamber?

    ○ How should the sampling tubes be positioned inside the environmental test chamber?

    ○ Since contaminant levels will no longer be immediately known, background concentrations will not be realized until after test completion and sample analysis. What metrics should be applied to the background concentrations and how should they impact the reported concentrations observed during conduct of the protocol tasks?

    Design of environmental test chamber: NIOSH proposes to keep the same environmental test chamber as that proposed for the original vapor containment test protocol, however airflow through the chamber will cease during the actual test procedures and air sampling.

    ○ Should NIOSH keep the current design of the environmental test chamber?

    • If not, what other designs should be considered and what validation requirements should be placed upon them?

    ○ Sampling for escaped surrogate will be performed by a sampling pump and air sampling tubes.

    • Are there concerns that the sample pump discharge air plus task-associated hand movements will be insufficient to provide adequate air mixing?

    Compounding and Administration tasks:

    ○ NIOSH has updated Task 1 and Task 2 in Appendix A of the performance test protocol to incorporate the adoption of CSTD manufacturers' Instructions for Use (IFU).

    • Should other manipulations be added or deleted from the current tasks listed in order to comply with a manufacturer's IFU?

    ○ For purposes of challenging a CSTD's containment performance, should the number of repetitions for each CSTD:Task pairing be less than or greater than 4?

    • What special considerations has NIOSH not considered in developing the new draft performance test protocol?

    III. Public Meeting: NIOSH will hold a public meeting to discuss a universal closed system drug-transfer device (CSTD) testing (draft) protocol entitled, A Performance Test Protocol for Closed System Transfer Devices Used During Pharmacy Compounding and Administration of Hazardous Drugs. The meeting will allow commenters the opportunity to address the new draft protocol, the proposed list of hazardous drug test surrogates, and to discuss NIOSH questions regarding the new protocol.

    The meeting is open to the public, limited only by the capacity (80 attendees) of the conference room. Confirm your attendance to this meeting by sending an email to [email protected] by October 21, 2016. An email confirming registration will be sent from NIOSH and will include details needed to participate.

    Registration is required for both in-person and LiveMeeting participation. An email confirming registration will be sent from NIOSH for both in-person participation and audio conferencing participation.

    Details required to participate via the audio conferencing will be provided by NIOSH in a separate email. This option will be available to participants on a first come, first served basis and is limited to the first 100 participants.

    Non-U.S. Citizens: Because of CDC Security Regulations, any non-U.S. citizen wishing to attend this meeting in-person must provide the following information to Deborah V. Hirst. Requests may be submitted by facsimile (513) 841-4506, or emailed to [email protected], no later than September 28, 2016. The information required includes:

    Name: Gender: Date of Birth: Place of Birth (city, province, state, country): Citizenship: Passport Number: Date of Passport Issue: Date of Passport Expiration: Type of Visa: U.S. Naturalization Number (if a naturalized citizen): U.S. Naturalization Date (if a naturalized citizen): Visitor's Organization: Organization Address: Organization Telephone Number: Visitor's Position/Title within the Organization:

    This information will be transmitted to the CDC Security Office for approval. Visitors will be notified as soon as approval has been obtained. If access approval is not granted to a non-U.S. Citizen, the individual may participate by LiveMeeting and audio conference.

    Requests to provide oral comments at the public meeting should be submitted by telephone (513) 841-4141, facsimile (513) 841-4506, or emailed to [email protected] with “Request to Speak” in the subject line. Requests can also be mailed to Deborah V. Hirst, 1090 Tusculum Ave., MS R-5, Cincinnati, OH 45226. All requests to speak should contain the name, address, telephone number, and relevant business affiliations of the speaker, and the approximate time requested for oral comments. Requests must be received by October 21, 2016.

    Oral comments from each speaker will be limited to 10 minutes. After reviewing the requests to make oral comments, NIOSH will notify the speaker when his/her oral comments are scheduled. If a participant is not in attendance when he/she is scheduled to speak, the remaining participants will be heard in order. After the last scheduled speaker is heard, participants who missed their assigned times may be allowed to speak, limited by time available.

    Attendees who wish to speak but did not submit a request for the opportunity to make oral comments may be given this opportunity after the scheduled speakers are heard, at the discretion of the presiding officer and limited by time available.

    Oral comments will be transcribed and included in the docket.

    John Howard, Director, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention.
    [FR Doc. 2016-22132 Filed 9-14-16; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Health Resources and Services Administration Supplement to National Technical Resource Center for the Newborn Hearing Screening and Intervention Program at the Utah State University AGENCY:

    Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).

    ACTION:

    Notice of Supplement to National Technical Resource Center for the Newborn Hearing Screening and Intervention Program at the Utah State University—Grant Number U52MC04391.

    SUMMARY:

    HRSA announces the award of a supplement in the amount of $300,000 for the National Technical Resource Center (NTRC) for the Newborn Hearing Screening and Intervention program cooperative agreement. Funding in future years is contingent upon satisfactory performance of the recipient, need, and availability of funds.

    The purpose of the NTRC is to address new research, approaches, and practice advances in the fields of family engagement, early language acquisition, and early literacy. The supplement will fund Utah State University, the cooperative agreement recipient, during the budget periods of the supplement 4/1/2016-3/31/2020, to respond to changes in research, policy, technology, and practice in the newborn hearing screening field in the areas of family engagement, early language acquisition, and early literacy. Funding in FY 2017, FY 2018, and FY 2019, is contingent upon appropriations, satisfactory performance of the recipient, need, and availability of funds.

    SUPPLEMENTARY INFORMATION:

    Intended Recipient of the Award: Utah State University.

    Amount of Non-Competitive Awards: $300,000.

    Period of Supplemental Funding: 4/1/2016-3/31/2020.

    CFDA Number: 93.251.

    Authority: Public Health Service Act, § 399M, as added by § 702 of the Children's Health Act of 2000 (Pub. L. 106-310) and amended by § 2 of the Early Hearing Detection and Intervention Act of 2010 (Pub. L. 111-337) (42 U.S.C. 280g-1)

    JUSTIFICATION:

    In 2015, following an objective review of its applications, HRSA awarded the NTRC for the Newborn Hearing Screening and Intervention program cooperative agreement to Utah State University, a state institution of higher education.

    Authorized by the Public Health Service Act, § 399M, as added by the Children's Health Act of 2000, § 702 (Pub. L. 106-310) and further amended by § 2 of the Early Hearing Detection and Intervention Act of 2010 (Pub. L. 111-337) (42 U.S.C. 280g-1), the purpose of the Universal Newborn Hearing Screening (UNHS) program is to utilize specifically targeted and measurable interventions to increase the number of infants who are followed up for rescreening, referral, and intervention after not passing a physiologic newborn screening examination prior to discharge from the newborn nursery.

    As stated in the funding opportunity announcement (FOA) HRSA 15-085, the focus of the NTRC is to provide to state Early Hearing Detection and Intervention (EHDI) programs training and technical assistance for planning, policy development, implementing innovations, and quality improvement methodology to reduce their loss to follow-up rate/loss to documentation, i.e. the number of infants who do not receive timely and appropriate screening follow-up and coordinated interventions.

    Since the publication of the FOA on September 9, 2014, many changes in research, policy, technology, and practice have occurred in the newborn hearing screening field in the areas of family engagement, early language acquisition, and early literacy. The NTRC cooperative agreement must address these changes to provide appropriate training and technical assistance. The Maternal and Child Health Bureau (MCHB) proposes to supplement the recipient in FY 2016 and 2017 to address new research, approaches, and practice advances in the field of family engagement. MCHB proposes to supplement the recipient in FY 2018 and 2019 to address the latest research findings and advances related to early language acquisition and early literacy. Funding in FY 2017, FY 2018, and FY 2019 is contingent upon appropriations, satisfactory performance of the recipient, need, and availability of funds.

    According to the National Institute for Children's Health Quality, families have a unique perspective on how the system currently affects them personally and can provide invaluable viewpoints on the steps that can be implemented to improve the system. Since the system exists to meet the needs of the deaf or hard of hearing infants and children, it is critical that their parents and families' viewpoints are acknowledged and leveraged. MCHB recommends greater representation of individuals who are deaf or hard of hearing throughout the NTRC as well as providing opportunities for families of deaf or hard of hearing children to become leaders within the EHDI system.

    To address these deficiencies, Utah State University submitted a prior approval request for funds to improve its family engagement. The NTRC will take a streamlined and targeted approach toward engaging families and family based organizations in its work. Though not introducing new services or activities, the NTRC will use the supplemental funds to refine its current services and activities to:

    1. Increase and refocus the family advisory committee to be more reflective of families who have a deaf or hard of hearing child;

    2. Target the NTRC's scholarship program toward greater family engagement and leadership development;

    3. Enhance family engagement in EHDI quality improvement activities; and

    4. Increase the NTRC's financial and programmatic support for the work by Hands & Voices to strengthen family engagement in EHDI programs.

    This will be the second supplement for this cooperative agreement.

    FOR FURTHER INFORMATION CONTACT:

    Sadie Silcott, MBA, MPH, Division of Services for Children with Special Health Needs, Maternal and Child Health Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 18W57, Rockville, Maryland 20857; Phone: (301) 443-0133; Email: [email protected].

    Dated: September 2, 2016. James Macrae, Acting Administrator.
    [FR Doc. 2016-21711 Filed 9-14-16; 8:45 am] BILLING CODE 4165-15-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Health Resources and Service Administration Advisory Commission on Childhood Vaccines AGENCY:

    Health Resources and Service Administration, HHS.

    ACTION:

    Notice of Meeting.

    SUMMARY:

    In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given that a meeting is scheduled for Advisory Commission on Childhood Vaccines (ACCV). This meeting will be open to the public. Information about the ACCV and the agenda for this meeting can be obtained by accessing the following Web site: http://www.hrsa.gov/advisorycommittees/childhoodvaccines/index.html.

    DATES:

    The meeting will be held on September 20, 2016, at 10:00 a.m. EDT.

    ADDRESSES:

    This meeting will be held via Adobe Connect Webinar and teleconference. The address for the meeting is 5600 Fishers Lane, Rockville, MD 20857, Conference Room 09N17. The public can join the meeting by:

    1. (Audio Portion) Calling the conference phone number 800-799-3561 and providing the following information:

    Leader Name: Dr. Narayan Nair Password: 8164763

    2. (Visual Portion) Connecting to the ACCV Adobe Connect Pro Meeting using the following URL: https://hrsa.connectsolutions.com/accv/ (copy and paste the link into your browser if it does not work directly, and enter as a guest). Participants should call and connect 15 minutes prior to the meeting in order for logistics to be set up. If you have never attended an Adobe Connect meeting, please test your connection using the following URL:https://hrsa.connectsolutions.com/common/help/en/support/meeting_test.htm and get a quick overview by following URL: http://www.adobe.com/go/connectpro_overview.

    FOR FURTHER INFORMATION CONTACT:

    Anyone requesting information regarding the ACCV should contact Annie Herzog, Program Analyst, Division of Injury Compensation Programs (DICP), Health Resources and Services Administration, in one of three ways: (1) Send a request to the following address: Annie Herzog, Program Analyst, DICP, Health Resources and Services Administration, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (2) call (301) 443-6593; or (3) send an email to [email protected]

    SUPPLEMENTARY INFORMATION:

    The ACCV was established by section 2119 of the Public Health Service Act (the Act) (42 U.S.C. 300aa-19), as enacted by Public Law (Pub. L.) 99-660, and as subsequently amended, and advises the Secretary of Health and Human Services (the Secretary) on issues related to implementation of the National Vaccine Injury Compensation Program (VICP).

    The activities of the ACCV also include: Recommending changes in the Vaccine Injury Table at its own initiative or as the result of the filing of a petition; advising the Secretary in implementing section 2127 of the Act regarding the need for childhood vaccination products that result in fewer or no significant adverse reactions; surveying federal, state, and local programs and activities related to gathering information on injuries associated with the administration of childhood vaccines, including the adverse reaction reporting requirements of section 2125(b) of the Act; advising the Secretary on the methods of obtaining, compiling, publishing, and using credible data related to the frequency and severity of adverse reactions associated with childhood vaccines; consulting on the development or revision of Vaccine Information Statements; and recommending to the Director of the National Vaccine Program research related to vaccine injuries which should be conducted to carry out the VICP.

    During the September 20 meeting, the agenda items will include, but are not limited to, updates from the Division of Injury Compensation Programs (DICP), Department of Justice (DOJ), National Vaccine Program Office (NVPO), Immunization Safety Office (Centers for Disease Control and Prevention), National Institute of Allergy and Infectious Diseases (National Institutes of Health) and Center for Biologics, Evaluation and Research (Food and Drug Administration). A draft agenda and additional meeting materials will be posted on the ACCV Web site (http://www.hrsa.gov/advisorycommittees/childhoodvaccines/index.html) prior to the meeting. Agenda items are subject to change as priorities dictate.

    Members of the public will have the opportunity to provide comments. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to make oral comments or provide written comments to the ACCV should be sent to Annie Herzog using the address or phone number above by September 18, 2016. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify Annie Herzog, using the address and phone number by September 16.

    Jason E. Bennett, Director, Division of the Executive Secretariat.
    [FR Doc. 2016-22193 Filed 9-14-16; 8:45 am] BILLING CODE 4165-15-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Notice of Opportunity for Public Comment on the Office of Dietary Supplements Draft 2016-2021 Strategic Plan SUMMARY:

    The Office of Dietary Supplements (ODS) at the National Institutes of Health (NIH) has initiated a strategic planning process that will culminate in the ODS Strategic Plan for 2016-2021. To assist with this process, the ODS requests input from research communities—academic, government, and industry—and from other interested parties. The overall purpose of the strategic planning effort is to identify both new opportunities and emerging needs for incorporation in the programmatic efforts of the Office. A draft is available on the ODS Web site at ods.od.nih.gov/StrategicPlan.

    DATES:

    In order to ensure full consideration, all responses must be submitted by 11:59 p.m., September 30, 2016.

    ADDRESSES:

    Interested individuals and organizations should submit their responses to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Anne L. Thurn, Ph.D., Office of Dietary Supplements, National Institutes of Health, 6100 Executive Boulevard, Room 3B01, Bethesda, MD 20892-7517, Phone: 301-435-2920, Fax: 301-480-1845, Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    ODS has drafted its next Strategic Plan and desires public comment on the progress of its programs and on future needs and opportunities for program activities. The draft plan and related information are available on the ODS Web site at ods.od.nih.gov/StrategicPlan.

    Guidance is being requested from all interested parties on these important issues:

    • Are the current strategic goals adequate?

    • Is ODS meeting its stakeholders' needs?

    • In the future, should some of ODS's current programs or activities be given higher (or lower) priority?

    • How can ODS more effectively provide useful information to the ODS user community, including consumers, investigators, practitioners, industry, media, policy makers, government, and other interested parties?

    Dated: September 9, 2016. Lawrence Tabak, Deputy Director, National Institutes of Health.
    [FR Doc. 2016-22233 Filed 9-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute of Mental Health; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Institute of Mental Health Special Emphasis Panel; Pilot Effectiveness Studies and Services Research Grants.

    Date: October 7, 2016.

    Time: 2:00 p.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Hotel Monaco, 700 F Street NW., Washington, DC 20001.

    Contact Person: Aileen Schulte, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, NIH Neuroscience Center, 6001 Executive Blvd., Room 6140, MSC 9608, Bethesda, MD 20892-9608, 301-443-1225, [email protected].

    Name of Committee: National Institute of Mental Health Special Emphasis Panel; Research Education Programs (R25).

    Date: October 13, 2016.

    Time: 1:00 p.m. to 3:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852, (Telephone Conference Call).

    Contact Person: David M. Armstrong, Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Mental Health, NIH Neuroscience Center/Room 6138/MSC 9608, 6001 Executive Boulevard, Bethesda, MD 20892-9608, 301-443-3534, [email protected].

    (Catalogue of Federal Domestic Assistance Program No. 93.242, Mental Health Research Grants, National Institutes of Health, HHS)
    Dated: September 9, 2016. Carolyn A. Baum, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2016-22165 Filed 9-14-16; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center for Scientific Review; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; PAR15-326: Science Track Award for Research.

    Date: October 4, 2016.

    Time: 2:00 p.m. to 2:30 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, (Telephone Conference Call).

    Contact Person: Yvonne Bennett, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5199, MSC 7846, Bethesda, MD 20892, 301-379-3793, [email protected].

    Name of Committee: Endocrinology, Metabolism, Nutrition and Reproductive Sciences Integrated Review Group; Integrative and Clinical Endocrinology and Reproduction Study Section.

    Date: October 11-12, 2016.

    Time: 8:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Ritz-Carlton Hotel, 1700 Tysons Boulevard, McLean, VA 22102.

    Contact Person: Dianne Hardy, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6175, MSC 7892, Bethesda, MD 20892, 301-435-1154, [email protected].

    Name of Committee: Emerging Technologies and Training Neurosciences Integrated Review Group; Neuroscience and Ophthalmic Imaging Technologies Study Section.

    Date: October 12-13, 2016.

    Time: 8:00 a.m. to 4:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Pier 2620 Hotel Fisherman's Wharf, 2620 Jones Street, San Francisco, CA 94133

    Contact Person: Yvonne Bennett, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5199, MSC 7846, Bethesda, MD 20892, 301-379-3793, [email protected].

    Name of Committee: Brain Disorders and Clinical Neuroscience Integrated Review Group; Aging Systems and Geriatrics Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Courtyard by Marriott, 5520 Wisconsin Avenue, Chevy Chase, MD 20815.

    Contact Person: Inese Z. Beitins, MD, Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6152, MSC 7892, Bethesda, MD 20892, 301-435-1034, [email protected].

    Name of Committee: Integrative, Functional and Cognitive Neuroscience Integrated Review Group; Neurobiology of Motivated Behavior Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 2:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Washington Plaza Hotel, 10 Thomas Circle NW., Washington, DC 20005.

    Contact Person: Jasenka Borzan, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4214 MSC 7814, Bethesda, MD 20892-7814, 301-435-1787, [email protected].\

    Name of Committee: Biological Chemistry and Macromolecular Biophysics Integrated Review Group; Macromolecular Structure and Function B Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 6:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Washington Plaza Hotel, 10 Thomas Circle NW., Washington, DC 20005.

    Contact Person: C-L Albert Wang, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4146, MSC 7806, Bethesda, MD 20892, 301-435-1016, [email protected].

    Name of Committee: Digestive, Kidney and Urological Systems Integrated Review Group; Kidney Molecular Biology and Genitourinary Organ Development.

    Date: October 13, 2016.

    Time: 8:00 a.m. to 6:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Crowne Plaza: Washington Natl Airport, 1480 Crystal Drive, Arlington, VA 22202.

    Contact Person: Ganesan Ramesh, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Dr., Room 2182, MSC 7818, Bethesda, MD 20892, [email protected]

    Name of Committee: Cell Biology Integrated Review Group; Cellular Mechanisms in Aging and Development Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 6:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Hilton Washington/Rockville, 1750 Rockville Pike, Rockville, MD 20852.

    Contact Person: John Burch, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institute of Health, 6701 Rockledge Drive, Room 3213, MSC 7808, Bethesda, MD 20892, 301-408-9519, [email protected].

    Name of Committee: Cell Biology Integrated Review Group; Intercellular Interactions Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 1:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Hilton Garden Inn Bethesda, 7301 Waverly Street, Bethesda, MD 20814.

    Contact Person: Wallace Ip, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5128, MSC 7840, Bethesda, MD 20892, 301-435-1191, [email protected].

    Name of Committee: Endocrinology, Metabolism, Nutrition and Reproductive Sciences Integrated Review Group; Integrative Nutrition and Metabolic Processes Study Section.

    Date: October 13-14, 2016.

    Time: 8:00 a.m. to 12:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Handlery Union Square Hotel, 351 Geary Street, San Francisco, CA 94102.

    Contact Person: Gregory S. Shelness, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6156, Bethesda, MD 20892-7892, 301-755-4335,