Federal Register Vol. 81, No.183,

Federal Register Volume 81, Issue 183 (September 21, 2016)

Page Range64759-65167
FR Document

81_FR_183
Current View
Page and SubjectPDF
81 FR 65159 - Northeast Canyons and Seamounts Marine National MonumentPDF
81 FR 64966 - Sunshine Act Meeting; Additional ItemPDF
81 FR 64976 - Office of Hazardous Materials Safety MeetingPDF
81 FR 64976 - Schedule of Charges Outside the United StatesPDF
81 FR 64887 - Authorization of Subgrants for the Disability Innovation Fund-Automated Personalization Computing ProjectPDF
81 FR 64909 - Notice of Agreements FiledPDF
81 FR 64895 - National Environmental Justice Advisory Council; Notification of Public Meeting and Public CommentPDF
81 FR 64905 - Notification of a Public Teleconference of the Great Lakes Advisory BoardPDF
81 FR 64902 - Proposed Information Collection Request; Comment Request; Prevention of Significant Deterioration and Nonattainment New Source Review (Renewal)PDF
81 FR 64870 - Foreign-Trade Zone (FTZ) 79-Tampa, Florida, Notification of Proposed Production Activity, Givaudan Flavors Corporation (Flavor Compounds), Lakeland, FloridaPDF
81 FR 64873 - Notice of Final Results of Antidumping Duty Changed Circumstances Review: Oil Country Tubular Goods From the Republic of KoreaPDF
81 FR 64870 - Foreign-Trade Zone (FTZ) 20-Newport News, Virginia, Notification of Proposed Production Activity, Canon Virginia, Inc., Subzone 20D (Toner Cartridges), Newport News, VirginiaPDF
81 FR 64888 - Membership of the Performance Review BoardPDF
81 FR 64897 - Product Cancellation Order for Certain Pesticide Registrations and Amendment To Terminate a Certain UsePDF
81 FR 64971 - Bureau of Political-Military Affairs, Directorate of Defense Trade Controls: Notifications to the Congress of Proposed Commercial Export LicensesPDF
81 FR 64906 - Correction; Summitec Corporation, Versar, Inc., and CDM/CSS-Dynamac Joint Venture; Transfer of DataPDF
81 FR 64980 - Submission for OMB Review; Comment RequestPDF
81 FR 64936 - Certain Personal Transporters and Components Thereof Institution of InvestigationPDF
81 FR 64957 - 3206-0235, Letter Reply To Request for Information, RI 20-64; Former Spouse Survivor Annuity Election, RI 20-64A; Information on Electing a Survivor Annuity for Your Former Spouse, RI 20-64BPDF
81 FR 64958 - 3206-0136, Designation of Beneficiary: Federal Employees' Group Life Insurance, SF 2823PDF
81 FR 64957 - 3206-0216, We Need Important Information About Your Eligibility for Social Security Disability Benefits, RI 98-7PDF
81 FR 64829 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Sonoyta Mud TurtlePDF
81 FR 64956 - 3206-0032, Self-Certification of Full-Time School Attendance For The School Year, RI 25-14 and Information and Instructions for Completing the Self-Certification of Full-Time School Attendance For The School Year, RI 25-14APDF
81 FR 64857 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Pearl DarterPDF
81 FR 64949 - Drug Enforcement AdministrationPDF
81 FR 64889 - Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas, and To Vacate Prior Authorization, During August 2016PDF
81 FR 64869 - Publication of Depreciation RatesPDF
81 FR 64759 - Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment RatePDF
81 FR 64954 - Nuclear Power Plant Instrumentation for EarthquakesPDF
81 FR 64785 - Cherries Grown in Designated Counties in Washington; Increased Assessment RatePDF
81 FR 64977 - Notice of Availability of the Final Environmental Assessment (EA) and Finding of No Significant Impact/Record of Decision (FONSI/ROD) for the Runway 13/31 Shift/Extension and Associated Improvements Project for the Detroit Lakes-Becker County Airport (DTL) in Detroit Lakes, MNPDF
81 FR 64949 - Bulk Manufacturer of Controlled Substances Application: Nanosyn, Inc.PDF
81 FR 64909 - Change in Bank Control Notices; Formations of, Acquisitions by, and Mergers of Bank Holding Companies; CorrectionPDF
81 FR 64909 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 64966 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Granting Approval of Proposed Rule Change Amending NYSE Rule 6A To Exclude the Physical Area Within Fully Enclosed Telephone Booths Located in 18 Broad Street From the Definition of Trading FloorPDF
81 FR 64969 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt NASD Interpretive Material 2210-2 as FINRA Rule 2211 (Communications With the Public About Variable Life Insurance and Variable Annuities) in the Consolidated FINRA RulebookPDF
81 FR 64932 - Eligibility of Independent Students for Assisted Housing Under Section 8 of the U.S. Housing Act of 1937; Additional Supplementary GuidancePDF
81 FR 64784 - Fisheries of the Exclusive Economic Zone Off Alaska; Shortraker Rockfish in the Western Regulatory Area of the Gulf of AlaskaPDF
81 FR 64929 - 60-Day Notice of Proposed Information Collection: Small Area Fair Market Rent Demonstration EvaluationPDF
81 FR 64977 - Passenger Facility Charge (PFC) Program; Draft FAA Order 5500.1BPDF
81 FR 64978 - Notice of Receipt of Petition for Decision that Nonconforming Model Year 2009 Jeep Compass Multipurpose Passenger Vehicles Are Eligible for ImportationPDF
81 FR 64934 - 60-Day Notice of Proposed Information Collection: Disaster Recovery Grant Reporting SystemPDF
81 FR 64959 - New Postal ProductsPDF
81 FR 64878 - Renewal of the Agricultural Advisory CommitteePDF
81 FR 64951 - National Commission on Forensic Science Solicitation of Applications for Additional Commission Membership To Support Medicolegal Death InvestigationPDF
81 FR 64825 - Procedures for Commission Review of State Opt-Out Requests From the FirstNet Radio Access NetworkPDF
81 FR 64953 - Advisory Board on Toxic Substances and Worker HealthPDF
81 FR 64913 - Coordinated Development of Antimicrobial Drugs and Antimicrobial Susceptibility Test Devices; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 64917 - Food and Drug Administration Modernization Act of 1997: Modifications to the List of Recognized Standards, Recognition List Number: 045PDF
81 FR 64761 - Medical Devices; General and Plastic Surgery Devices; Classification of the Magnetic Surgical Instrument SystemPDF
81 FR 64916 - Reporting of Computational Modeling Studies in Medical Device Submissions; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 64869 - Rio Grande National Forest; Colorado; Revision of the Land Management Plan for the Rio Grande National Forest; CorrectionPDF
81 FR 64885 - Fiscal Year 2017 Draft Work PlanPDF
81 FR 64936 - Notice of Public Meeting, North Slope Science Initiative-Science Technical Advisory PanelPDF
81 FR 64978 - Environmental Impact Statement: Suffolk County, New YorkPDF
81 FR 64878 - Submission for OMB Review; Comment Request-Follow-Up Activities for Product-Related InjuriesPDF
81 FR 64884 - Proposed Collection; Comment RequestPDF
81 FR 64782 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 64880 - Charter Amendment of Department of Defense Federal Advisory CommitteesPDF
81 FR 64880 - 36(b)(1) Arms Sales NotificationPDF
81 FR 64911 - Food and Drug Administration's Application of Statutory Factors in Determining When a Risk Evaluation and Mitigation Strategy Is Necessary; Draft Guidance for Industry; AvailabilityPDF
81 FR 64952 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Labor Standards for Federal Service ContractsPDF
81 FR 64908 - Filing Dates for the Kentucky Special Election in the 1st Congressional DistrictPDF
81 FR 64875 - Deposit of Biological MaterialsPDF
81 FR 64877 - Submission for OMB Review; Comment Request, Pro Bono Survey; CorrectionPDF
81 FR 64877 - Submission for OMB Review; Comment Request; Legal ProcessesPDF
81 FR 64940 - Richard J. Settles, D.O.; Decision and OrderPDF
81 FR 64871 - Order Denying Export PrivilegesPDF
81 FR 64910 - Submission for OMB Review; Comment RequestPDF
81 FR 64937 - Charles Szyman, D.O.; Decision and OrderPDF
81 FR 64960 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 64959 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 64960 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 64959 - Product Change-Parcel Select Negotiated Service AgreementPDF
81 FR 64904 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of AlaskaPDF
81 FR 64904 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of OregonPDF
81 FR 64907 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Gasoline Distribution Facilities (Renewal)PDF
81 FR 64928 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
81 FR 64812 - Review and Approval of ProjectsPDF
81 FR 64921 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 64920 - Center For Scientific Review; Notice of Closed MeetingsPDF
81 FR 64921 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 64907 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Automobile and Light-Duty Truck Surface Coating (Renewal)PDF
81 FR 64905 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Stationary Combustion Turbines (Renewal)PDF
81 FR 64896 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Registration of Fuels and Fuel Additives-Health-Effects Research Requirements for Manufacturers (Renewal)PDF
81 FR 64894 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; National Oil and Hazardous Substances Pollution Contingency Plan Regulation (Renewal)PDF
81 FR 64914 - Armenpharm, Ltd.; Suspension of Approval of an Abbreviated New Drug Application for Chloramphenicol Capsules, 250 Milligrams; Determination That CHLOROMYCETIN (Chloramphenicol) Capsules, 50 Milligrams and 100 Milligrams, and Three Other Products Were Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
81 FR 64963 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt an Options Regulatory FeePDF
81 FR 64960 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Modify the Options Regulatory FeePDF
81 FR 64882 - 36(b)(1) Arms Sales NotificationPDF
81 FR 64872 - Advisory Committee on Supply Chain Competitiveness: Notice of Public MeetingsPDF
81 FR 64935 - Indian Gaming; Approval of a Tribal-State Class III Gaming Compact in the State of South DakotaPDF
81 FR 64874 - Submission for OMB Review; Comment RequestPDF
81 FR 64894 - Combined Notice of Filings #2PDF
81 FR 64891 - Combined Notice of Filings #1PDF
81 FR 64891 - North Lancaster Ranch LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 64893 - Lindahl Wind Project, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 64892 - Oliver Wind III, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 64894 - Combined Notice of FilingsPDF
81 FR 64892 - Combined Notice of Filings #1PDF
81 FR 64893 - Combined Notice of Filings #1PDF
81 FR 64870 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 64910 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 64910 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 64955 - Shipping, Receiving, and Internal Transfer of Special Nuclear MaterialPDF
81 FR 64889 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use ActPDF
81 FR 64763 - Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development ProgramsPDF
81 FR 64930 - 60-Day Notice of Proposed Information Collection: Public Comment Request: Notice on Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status for HUD's Community Planning and Development ProgramsPDF
81 FR 64829 - Endangered and Threatened Wildlife and Plants; 90-Day Findings on 10 Petitions; CorrectionPDF
81 FR 64843 - Endangered and Threatened Wildlife and Plants; 12-Month Findings on Petitions To List Nine Species as Endangered or Threatened SpeciesPDF
81 FR 64922 - NIH Policy on the Dissemination of NIH-Funded Clinical Trial InformationPDF
81 FR 64805 - Regional Innovation ProgramPDF
81 FR 64787 - Innovative Technologies in Manufacturing Loan Guarantee ProgramPDF
81 FR 64981 - Clinical Trials Registration and Results Information SubmissionPDF

Issue

81 183 Wednesday, September 21, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Domestic Dates Produced or Packed in Riverside County, CA: Decreased Assessment Rate, 64759-64761 2016-22745 PROPOSED RULES Cherries Grown in Designated Counties in Washington: Increased Assessment Rate, 64785-64787 2016-22740 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

See

Rural Utilities Service

Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Unaccompanied Refugee Minors Placement and Outcomes Reports, 64910-64911 2016-22678 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Commodity Futures Commodity Futures Trading Commission NOTICES Charter Renewals: Agricultural Advisory Committee, 64878 2016-22717 Consumer Product Consumer Product Safety Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64878-64880 2016-22696 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64884-64885 2016-22695 Arms Sales, 64880-64884 2016-22655 2016-22692 Charter Amendments: Department of Defense Federal Advisory Committees, 64880 2016-22693 Denali Denali Commission NOTICES Fiscal Year 2017 Draft Work Plan, 64885-64887 2016-22704 Drug Drug Enforcement Administration NOTICES Decisions and Orders: Charles Szyman, D.O., 64937-64940 2016-22677 Kevin L. Lowe, M.D., 64949-64951 2016-22751 Richard J. Settles, D.O., 64940-64949 2016-22680 Manufacturers of Controlled Substances; Applications: Nanosyn, Inc., 64949 2016-22737 Economic Development Economic Development Administration PROPOSED RULES Innovative Technologies in Manufacturing Loan Guarantee Program, 64787-64805 2016-22284 Regional Innovation Program, 64805-64812 2016-22286 NOTICES Trade Adjustment Assistance Eligibility; Petitions, 64870 2016-22638 Education Department Education Department NOTICES Authorization of Subgrants for Disability Innovation Fund; Automated Personalization Computing Project, 64887-64888 2016-22774 Performance Review Board Membership, 64888-64889 2016-22766 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Authority to Import and Export Natural and Liquefied Natural Gas: Clean Energy, Rio Grande LNG, LLC, et al., 64889-64890 2016-22750 Filings: Self-Certification of Coal Capability under Powerplant and Industrial Fuel Use Act, 64889 2016-22627
Environmental Protection Environmental Protection Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64902-64904 2016-22770 Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Oil and Hazardous Substances Pollution Contingency Plan Regulation, 64894-64895 2016-22661 NESHAP for Automobile and Light-Duty Truck Surface Coating, 64907 2016-22664 NESHAP for Gasoline Distribution Facilities, 64907-64908 2016-22670 NESHAP for Stationary Combustion Turbines, 64905 2016-22663 Registration of Fuels and Fuel Additives—Health-Effects Research Requirements for Manufacturers, 64896-64897 2016-22662 Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Alaska, 64904-64905 2016-22672 Authorized Program Revision Approval, State of Oregon, 64904 2016-22671 Data Transfers: Summitec Corp., Versar, Inc., and CDM/CSS-Dynamac Joint Venture; Correction, 64906-64907 2016-22762 Meetings: Great Lakes Advisory Board; Teleconference, 64905-64906 2016-22771 National Environmental Justice Advisory Council, 64895-64896 2016-22772 Pesticide Product Registrations: Certain Pesticide Registrations and Amendment to Terminate a Certain Use; Cancellation, 64897-64902 2016-22764 Federal Aviation Federal Aviation Administration NOTICES Environmental Assessments; Availability, etc.: Runway 13/31 Shift/Extension and Associated Improvements Project for Detroit Lakes-Becker County Airport, Detroit Lakes, MN, 64977-64978 2016-22739 Meetings: International Civil Aviation Organization Dangerous Goods Panel, 64976-64977 2016-22795 Passenger Facility Charge Program, 64977 2016-22721 Schedule of Charges Outside United States, 64976 2016-22776 Federal Communications Federal Communications Commission PROPOSED RULES Procedures for Commission Review of State Opt-Out Requests from FirstNet Radio Access Network, 64825-64829 2016-22714 Federal Election Federal Election Commission NOTICES Special Election Filing Dates: Kentucky 1st Congressional District, 64908-64909 2016-22685 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 64891-64894 2016-22639 2016-22640 2016-22641 2016-22645 2016-22646 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Lindahl Wind Project, LLC, 64893 2016-22643 North Lancaster Ranch, LLC, 64891 2016-22644 Oliver Wind III, LLC, 64892-64893 2016-22642 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Suffolk County, NY, 64978 2016-22698 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 64909 2016-22773 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 64910 2016-22636 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 2016-22637 64909-64910 2016-22733 Formations of, Acquisitions by, and Mergers of Bank Holding Companies; Corrections, 64909 2016-22734 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: 90-Day Findings on 10 Petitions; Correction, 64829 2016-22558 Endangered and Threatened Wildlife and Plants: 12-Month Findings on Petitions to List Nine Species, 64843-64857 2016-22453 Status for Pearl Darter, 64857-64868 2016-22752 Status for Sonoyta Mud Turtle, 64829-64843 2016-22754 Food and Drug Food and Drug Administration RULES Medical Devices: General and Plastic Surgery Devices; Classification of Magnetic Surgical Instrument System, 64761-64763 2016-22709 NOTICES Drug Products from Sale for Reasons other than Safety or Effectiveness; Withdrawals: CHLOROMYCETIN (Chloramphenicol) Capsules, 50 Milligrams and 100 Milligrams, and Three Other Products, 64914-64916 2016-22660 Guidance: Application of Statutory Factors in Determining When Risk Evaluation and Mitigation Strategy is Necessary, 64911-64913 2016-22689 Coordinated Development of Antimicrobial Drugs and Antimicrobial Susceptibility Test Devices, 64913-64914 2016-22711 Modifications to List of Recognized Standards, Recognition List Number 045, 64917-64920 2016-22710 Reporting of Computational Modeling Studies in Medical Device Submissions, 64916-64917 2016-22708 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Canon Virginia, Inc. Subzone 20D (Toner Cartridges) Newport News, VA, 64870 2016-22767 Givaudan Flavors Corp. (Flavor Compounds), Lakeland, FL; Foreign-Trade Zone 79, Tampa, FL, 64870-64871 2016-22769 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Revision of Land Management Plan for Rio Grande National Forest, CO, 64869 2016-22706 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

RULES Clinical Trials Registration and Results Information Submission, 64982-65157 2016-22129
Housing Housing and Urban Development Department RULES Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs, 64763-64782 2016-22589 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Disaster Recovery Grant Reporting System, 64934-64935 2016-22719 Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status for HUD's Community Planning and Development Programs, 64930-64932 2016-22587 Small Area Fair Market Rent Demonstration Evaluation, 64929-64930 2016-22722 Guidance: Eligibility of Independent Students for Assisted Housing under Section 8 of U.S. Housing Act, 64932-64933 2016-22727 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Approval of Tribal-State Class III Gaming Compact in State of South Dakota, 64935-64936 2016-22649 Industry Industry and Security Bureau NOTICES Orders Denying Export Privileges: Francisco Javier Mendoza-Esquivel, Big Spring, TX, 64871-64872 2016-22679 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Oil Country Tubular Goods from Republic of Korea, 64873-64874 2016-22768 Meetings: Advisory Committee on Supply Chain Competitiveness, 64872-64873 2016-22654 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Personal Transporters and Components Thereof, 64936-64937 2016-22758 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Applications: National Commission on Forensic Science, 64951-64952 2016-22715
Labor Department Labor Department See

Workers Compensation Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Labor Standards for Federal Service Contracts, 64952 2016-22687
Land Land Management Bureau NOTICES Meetings: North Slope Science Initiative Science Technical Advisory Panel, 64936 2016-22701 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Import Eligibilities: Nonconforming Model Year 2009 Jeep Compass Multipurpose Passenger Vehicles, 64978-64980 2016-22720 National Institute National Institutes of Health NOTICES Dissemination of NIH-Funded Clinical Trial Information, 64922-64928 2016-22379 Meetings: Center for Scientific Review, 64920-64922 2016-22665 2016-22666 National Center for Advancing Translational Sciences, 64928-64929 2016-22669 National Heart, Lung, and Blood Institute, 64921 2016-22667 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Exchange of Flatfish in Bering Sea and Aleutian Islands Management Area, 64782-64784 2016-22694 Shortraker Rockfish in Western Regulatory Area of Gulf of Alaska, 64784 2016-22724 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2016-22647 64874-64875 2016-22648 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Guidance: Nuclear Power Plant Instrumentation for Earthquakes, 64954-64955 2016-22743 Shipping, Receiving, and Internal Transfer of Special Nuclear Material, 64955-64956 2016-22634 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Deposit of Biological Materials, 64875-64877 2016-22684 Legal Processes, 64877-64878 2016-22682 Pro Bono Survey, 64877 2016-22683 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Designation of Beneficiary, Federal Employees' Group Life Insurance, 64958-64959 2016-22756 Letter Reply to Request for Information; Former Spouse Survivor Annuity Election; Information on Electing Survivor Annuity for Former Spouse, 64957-64958 2016-22757 Self-Certification of Full-Time School Attendance for School Year and Information and Instructions for Completing Self-Certification of Full-Time School Attendance for School Year, 64956-64957 2016-22753 We Need Important Information about Your Eligibility for Social Security Disability Benefits, 64957 2016-22755 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 64959 2016-22718 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 64959-64960 2016-22675 2016-22676 Parcel Select Negotiated Service Agreement, 64959-64960 2016-22673 Priority Mail Negotiated Service Agreement, 64960 2016-22674 Presidential Documents Presidential Documents PROCLAMATIONS Northeast Canyons and Seamounts Marine National Monument (Proc. 9496), 65159-65167 2016-22921 Rural Utilities Rural Utilities Service NOTICES Depreciation Rates, 64869 2016-22747 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 64966 2016-22906 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 64960-64963 2016-22656 Bats EDGX Exchange, Inc., 64963-64965 2016-22657 Financial Industry Regulatory Authority, Inc., 64969-64970 2016-22729 New York Stock Exchange, LLC, 64966-64969 2016-22730 State Department State Department NOTICES Arms Sales, 64971-64976 2016-22763 Susquehanna Susquehanna River Basin Commission PROPOSED RULES Review and Approval of Projects, 64812-64825 2016-22668 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64980 2016-22759 Workers' Workers Compensation Programs Office NOTICES Meetings: Advisory Board on Toxic Substances and Worker Health, 64953-64954 2016-22712 Separate Parts In This Issue Part II Health and Human Services Department, 64982-65157 2016-22129 Part III Presidential Documents, 65159-65167 2016-22921 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.

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81 183 Wednesday, September 21, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 987 [Docket No. AMS-SC-16-0084; SC16-987-1 IR] Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule implements a recommendation from the California Date Administrative Committee (committee) for a decrease in the assessment rate established for the 2016-17 and subsequent crop years from $0.10 to $0.05 per hundredweight of dates handled. The committee locally administers the marketing order, which regulates the handling of dates produced or packed in Riverside County, California. Assessments upon date handlers are used by the committee to fund reasonable and necessary expenses of the program. The crop year begins October 1 and ends September 30. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective September 22, 2016. Comments received by November 21, 2016, will be considered prior to issuance of a final rule.

ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the docket number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting comments will be made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT:

Terry Vawter, Senior Marketing Specialist, or Jeffrey Smutny, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 987, both as amended (7 CFR part 987), regulating the handling of dates produced or packed in Riverside County, California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Riverside County, California, date handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dates beginning October 1, 2016, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate for the 2016-17 and subsequent crop years from $0.10 to $0.05 per hundredweight of dates.

The California date order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are date producers and handlers from Riverside County, California. They are familiar with the committee's needs and the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2015-16 crop year, the committee recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information supplied by the committee or other information available to USDA.

The committee met on June 22, 2016, and unanimously recommended 2016-17 expenditures of $52,500, and an assessment rate of $0.05 per hundredweight of dates produced or packed in Riverside County, California. In comparison, last year's budgeted expenditures were $59,250. The assessment rate of $0.05 is $0.05 lower than the rate currently in effect.

The major expenditure recommended by the committee for the 2016-17 crop year is $52,500 for general and administrative expenses. In comparison, the major expenditure recommended by the committee for the 2015-16 crop year was $59,250 for general and administrative expenses.

This year's crop is estimated to be similar in size to last year's crop. The income generated when applying the recommended lower assessment rate to the estimated crop, and combined with carry-in funds from the 2015-16 crop year and income from other sources, should be sufficient to cover anticipated 2016-17 expenses. The financial reserve will also be maintained within the limit specified under the order.

The assessment rate of $0.05 per hundredweight of dates handled was recommended by the committee after considering several factors: The anticipated size of the 2016-17 crop, the committee's estimates of the incoming reserve, other income, and anticipated expenses. Date shipments for the year are estimated at 29,000,000 pounds (290,000 hundredweight) which should provide $14,500 in assessment income. Income derived from handler assessments, funds from the committee's authorized reserve, along with other income should be adequate to cover budgeted expenses for the crop year.

Section 987.72(d) of the order states that the committee may maintain a monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The committee expects to utilize $33,000 of the reserve during the year to cover expenses, leaving approximately $39,500 in the reserve account at the end of the crop year. The remaining reserve will be below the limit specified in the order.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate is effective for an indefinite period, the committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2016-17 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 70 date producers in the production area and 11 date handlers subject to regulation under the order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms as those whose annual receipts are less than $7,500,000. (13 CFR 121.201)

According to the National Agricultural Statistics Service (NASS), data for the most-recently completed crop year (2015) shows that about 4.36 tons, or 8,720 pounds, of dates were produced per acre. The 2015 producer price published by NASS was $1,560 per ton. Thus, the value of date production per acre in 2014-15 averaged about $6,802 (4.36 tons times $1,560 per ton, rounded to the nearest dollar). At that average price, a producer would have to farm over 110 acres to receive an annual income from dates of $750,000 ($750,000 divided by $6,802 per acre equals 110.26 acres). According to committee staff, the majority of California date producers farm less than 110 acres. Thus, it can be concluded that the majority of date producers could be considered small entities. In addition, according to data from the committee staff, the majority of California date handlers have receipts of less than $7,500,000 and may also be considered small entities.

This rule decreases the assessment rate collected from handlers for the 2016-17 and subsequent crop years from $0.10 to $0.05 per hundredweight of dates handled. The committee unanimously recommended 2016-17 expenditures of $52,500 and an assessment rate of $0.05 per hundredweight of dates, which is $0.05 lower than the 2015-16 rate currently in effect. The quantity of assessable dates for the 2016-17 crop year is estimated at 29,000,000 pounds (290,000 hundredweight). Thus, the $0.05 rate should provide $14,500 in assessment income. Income derived from handler's assessments, funds from the committee's authorized reserve, and other income should be adequate to cover expenses for the 2016-17 crop year.

The major expenditure recommended by the committee for the 2016-17 crop year is $52,500 for general and administrative expenses. The major expenditure recommended by the committee for the 2015-16 crop year was $59,250 for general and administrative expenses.

The committee recommended a lower assessment rate because they will fund only general and administrative expenses and use funds from the reserve to augment their assessments. The income generated from the lower assessment rate applied to the estimated crop, combined with carry-in funds from the 2015-16 crop year and income from other sources, should be sufficient to cover anticipated 2016-17 expenses and to maintain a financial reserve within the limit specified under the order.

Section 987.72(d) of the order states that the committee may maintain a monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The committee estimated a $72,500 reserve carry-in for the 2016-17 crop year. It expects to utilize $33,000 of the reserve during the year, leaving a carry-out of approximately $39,500 at the end of the 2016-17 crop year, which is below the limit specified in the order.

The committee reviewed and unanimously recommended 2016-17 crop year expenditures of $52,500. Prior to arriving at this budget, the Committee considered alternative expenditure levels and assessment rates, including not changing the assessment rate at all or varying the line item expenses. Ultimately, the committee recommended an assessment rate of $0.05 per hundredweight of dates after considering several factors including the anticipated 2016-17 crop size, the committee's estimates of the incoming reserve funds and other income, and its anticipated expenses.

A review of historical and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2015-16 crop year was approximately $78.00 per hundredweight of dates. Utilizing that price, the estimated crop size, and the assessment rate of $0.05 per hundredweight, the estimated assessment revenue for the 2016-17 crop year as a percentage of total producer revenue is approximately .00064 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the committee meeting was widely publicized throughout the California date industry, and all interested persons were invited to attend the meetings and encouraged to participate in committee deliberations on all issues. Like all committee meetings, the June 22, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Industry members also discussed the various possible assessment rates, potential crop size, and estimated expenses at this meeting. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, “Vegetable and Specialty Crop Marketing Orders.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Riverside County, California date handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2016-17 crop year begins on October 1, 2016, and the marketing order requires that the rate of assessment for each crop year apply to all assessable dates handled during such crop year; (2) the action decreases the assessment rate for assessable dates beginning with the 2016-17 crop year; (3) handlers are aware of this action which was unanimously recommended by the committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 987

Dates, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 987 is amended as follows:

PART 987—DOMESTIC DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY, CALIFORNIA 1. The authority citation for 7 CFR part 987 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 987.339 is revised to read as follows:
§ 987.339 Assessment rate.

On and after October 1, 2016, an assessment rate of $0.05 per hundredweight is established for dates produced or packed in Riverside County, California.

Dated: September 16, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-22745 Filed 9-20-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 878 [Docket No. FDA-2016-N-2562] Medical Devices; General and Plastic Surgery Devices; Classification of the Magnetic Surgical Instrument System AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final order.

SUMMARY:

The Food and Drug Administration (FDA) is classifying the Magnetic Surgical Instrument System into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the magnetic surgical instrument system's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

DATES:

This order is effective September 21, 2016. The classification was applicable on June 13, 2016.

FOR FURTHER INFORMATION CONTACT:

Varun Pattani, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G452, Silver Spring, MD, 20993-0002, 301-796-6368, [email protected].

SUPPLEMENTARY INFORMATION: I. Background

In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i), to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1) of the FD&C Act. Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA shall classify the device by written order within 120 days. This classification will be the initial classification of the device.

On February 9, 2015, Levita Magnetics International Corp., submitted a request for classification of the Levita Magnetic Surgical System under section 513(f)(2) of the FD&C Act.

In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on June 13, 2016, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 878.4815.

Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a magnetic surgical instrument system will need to comply with the special controls named in this final order. The device is assigned the generic name magnetic surgical instrument system, and it is identified as a prescription device used in laparoscopic surgical procedures consisting of several components, such as surgical instruments, and a magnetic controller. The magnetic controller is provided separately from the surgical instrument and is used outside the patient. The external magnetic controller is magnetically coupled with the internal surgical instrument(s) at the surgical site to grasp, hold, retract, mobilize, or manipulate soft tissue and organs.

FDA has identified the following risks to health associated specifically with this type of device, as well as the mitigation measures required to mitigate these risks in table 1.

Table 1—Magnetic Surgical Instrument System Risks and Mitigation Measures Identified risk Mitigation measures Tissue Damage In vivo Performance Testing. Human Factors Testing and Analysis. Training. Labeling. Need for Extended or Additional Surgery:
  • • Inability to couple the external magnet with the internal surgical instrument
  • • Inability to retrieve or maneuver device
  • • Inability to visualize critical anatomical structures
  • In vivo Performance Testing.
  • Non-clinical Performance Testing.
  • Human Factors Testing and Analysis.
  • Training.
  • Labeling.
  • Abdominal Wall Injury In vivo Performance Testing.
  • Human Factors Testing and Analysis.
  • Labeling.
  • Electromagnetic Field Incompatibility or Interference (including ferromagnetic implants in users and patients, electrosurgical devices, etc.) Non-clinical Performance Testing. Human Factors Testing and Analysis. Training. Labeling. Adverse Tissue Reaction Biocompatibility Evaluation. Infection Sterilization Validation. Reprocessing Validation. Shelf Life Validation. Labeling.

    FDA believes that the special controls, in addition to the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.

    A magnetic surgical instrument system device is not safe for use except under the supervision of a practitioner licensed by law to direct the use of the device. As such, the device is a prescription device and must satisfy prescription labeling requirements (see 21 CFR 801.109, Prescription devices).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the magnetic surgical instrument system they intend to market.

    II. Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    III. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 878

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 878 is amended as follows:

    PART 878—GENERAL AND PLASTIC SURGERY DEVICES 1. The authority citation for part 878 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 878.4815 to subpart E to read as follows:
    § 878.4815 Magnetic surgical instrument system.

    (a) Identification. A magnetic surgical instrument system is a prescription device used in laparoscopic surgical procedures consisting of several components, such as surgical instruments, and a magnetic controller. The magnetic controller is provided separately from the surgical instrument and is used outside the patient. The external magnetic controller is magnetically coupled with the internal surgical instrument(s) at the surgical site to grasp, hold, retract, mobilize, or manipulate soft tissue and organs.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) In vivo performance data must demonstrate that the device performs as intended under anticipated conditions of use. Testing must demonstrate the ability of the device to grasp, hold, retract, mobilize, or manipulate soft tissue and organs.

    (2) Non-clinical performance data must demonstrate that the system performs as intended under anticipated conditions of use. The following performance characteristics must be tested:

    (i) Magnetic field strength testing characterization to identify the distances from the magnet that are safe for patients and users with ferromagnetic implants, devices, or objects.

    (ii) Ability of the internal surgical instrument(s) to be coupled, de-coupled, and re-coupled with the external magnet over the external magnet use life.

    (3) The patient-contacting components of the device must be demonstrated to be biocompatible.

    (4) Performance data must demonstrate the sterility of the device components that are patient-contacting.

    (5) Methods and instructions for reprocessing reusable components must be validated.

    (6) Performance data must support shelf life by demonstrating continued sterility of the device or the sterile components and device functionality over the labeled shelf life.

    (7) Training must be developed and validated by human factors testing and analysis to ensure users can follow the instructions for use to allow safe use of the device.

    (8) Labeling must include:

    (i) Magnetic field safe zones.

    (ii) Instructions for proper device use.

    (iii) A screening checklist to ensure that all patients and operating staff are screened from bringing ferromagnetic implants, devices, or objects near the external magnet.

    (iv) Reprocessing instructions for any reusable components.

    (v) Shelf life.

    (vi) Use life.

    Dated: September 15, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-22709 Filed 9-20-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 5 [Docket No. FR 5863-F-02] RIN 2506-AC40 Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs AGENCY:

    Office of the Secretary, HUD.

    ACTION:

    Final rule.

    SUMMARY:

    Through this final rule, HUD ensures equal access for individuals in accordance with their gender identity in programs and shelter funded under programs administered by HUD's Office of Community Planning and Development (CPD). This rule builds upon HUD's February 2012 final rule entitled “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” (2012 Equal Access Rule), which aimed to ensure that HUD's housing programs would be open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status. The 2012 Equal Access Rule, however, did not address how transgender and gender non-conforming individuals should be accommodated in temporary, emergency shelters, and other buildings and facilities used for shelter, that have physical limitations or configurations that require and that are permitted to have shared sleeping quarters or shared bathing facilities. This final rule follows HUD's November 2015 proposed rule, which addressed this issue and solicited public comment on measures to ensure that recipients and subrecipients of CPD funding—as well as owners, operators, and managers of shelters and other buildings and facilities and providers of services funded by CPD—grant equal access to such facilities and services to individuals in accordance with an individual's gender identity.

    This rule amends HUD's definition of “gender identity” to more clearly reflect the difference between actual and perceived gender identity and eliminates the prohibition on inquiries related to sexual orientation or gender identity, so that service providers can ensure compliance with this rule. The removal of the prohibition on inquiries related to sexual orientation or gender identity does not alter the requirement to make housing assisted by HUD and housing insured by the Federal Housing Administration (FHA) available without regard to actual or perceived sexual orientation or gender identity. Lastly, without changing the scope of the requirement to provide equal access without regard to sexual orientation, this rule makes a technical amendment to the definition of “sexual orientation,” which HUD adopted from the Office of Personnel Management's (OPM) definition of the term in 2012, to conform to OPM's current definition.

    In order to ensure that individuals are aware of their rights to equal access, HUD is publishing elsewhere in this issue of the Federal Register for public comment, in accordance with the Paperwork Reduction Act of 1995, a document entitled “Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status” for owners or operators of CPD-funded shelters, housing, facilities, and other buildings to post on bulletin boards and in other public spaces where information is typically made available.

    DATES:

    Effective: October 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-7000; telephone number 202-708-4300 (this is not a toll-free number). Persons with who are deaf or hard of hearing or have speech impairments can access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

    SUPPLEMENTARY INFORMATION: I. Background A. HUD's Previous Efforts To Ensure Equal Access

    On February 3, 2012, at 77 FR 5662, HUD issued its 2012 Equal Access Rule, which defined the terms “sexual orientation” and “gender identity,” and required that HUD-assisted housing, including all housing funded by CPD, and housing insured by FHA be made available to individuals and families without regard to actual or perceived sexual orientation, gender identity, or marital status. The 2012 Equal Access Rule also generally prohibited inquiries into sexual orientation or gender identity for the purpose of determining eligibility for, or availability of, such housing. In the 2012 Equal Access Rule, HUD declined to adopt a national policy on the placement of transgender persons in temporary, emergency shelters with shared sleeping quarters or shared bathing facilities, deciding instead to conduct research and monitor its programs to determine whether additional guidance or national policy was needed to ensure equal access for transgender and gender nonconforming persons.1 HUD also decided to conduct a similar review to determine whether additional guidance was needed with regard to the prohibition on inquiries.

    1 Gender nonconforming persons are persons who do not follow other people's ideas or stereotypes about how they should look or act based on their sex assigned at birth.

    As a result of its review, HUD determined that the 2012 Equal Access Rule did not adequately address the significant barriers faced by transgender and gender nonconforming persons when accessing temporary, emergency shelters and other facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or bathing facilities. Specifically, HUD found that transgender and gender nonconforming persons continue to experience significant violence, harassment, and discrimination in attempting to access programs, benefits, services, and accommodations. For instance, at a listening session on lesbian, gay, bisexual, and transgender (LGBT) issues conducted with the U.S. Interagency Council on Homelessness, homeless service providers reported that transgender persons are often discriminatorily excluded from shelters or face dangerous conditions in the shelters that correspond to their sex assigned at birth. Some commenters reported that, if given the choice between a shelter designated for assigned birth sex or sleeping on the streets, many transgender shelter-seekers would choose the streets.

    HUD also investigated individual cases where transgender persons were not provided equal access as required by the 2012 Equal Access Rule, or they faced unlawful discrimination under the Fair Housing Act. HUD also reviewed national research that revealed that lack of access to shelter for transgender and gender nonconforming persons, particularly those who were also homeless youths, was a pervasive problem and reviewed the efforts of other Federal agencies to provide equal access to transgender and gender nonconforming persons. HUD found that multiple agencies prohibit discrimination on the basis of sexual orientation and gender identity and also require that grant recipients treat transgender persons consistent with their gender identity. Specifically, HUD found guidance from other Federal agencies supporting the position that grant recipients could accommodate transgender individuals in accordance with their gender identity in Federal programs, including those program that funded single-sex facilities.

    On February 20, 2015, CPD issued guidance, entitled “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities” (CPD-15-02), which applied to the following CPD programs: Housing Opportunities for Persons With AIDS (HOPWA), Emergency Solutions Grants (ESG), and Continuum of Care (CoC). This guidance clarified that HUD expected recipients and subrecipients under these programs to base placement decisions on the gender with which a person identifies—and not on another person's stereotype-based complaints—taking into consideration health and safety concerns and giving serious consideration to the transgender or gender nonconforming person's own personal health and safety concerns. The guidance also outlined best practices for providers.

    B. The November 2015 Proposed Rule

    On November 20, 2015, at 80 FR 72642, following careful review of information about the treatment of transgender persons in temporary, emergency shelters, HUD proposed a second Equal Access rule, entitled “Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs” (CPD Equal Access). In this rulemaking, HUD proposed to add a new section to its regulations in 24 CFR part 5 that would require recipients and subrecipients of assistance under CPD programs—as well as owners, operators, and managers of shelters and other buildings and facilities and providers of services funded in whole or in part by CPD programs—to provide equal access to programs, benefits, services, and accommodations in accordance with an individual's gender identity.

    Specifically, the rule proposed to add to 24 CFR part 5 a new § 5.106, which would contain equal access provisions tailored to CPD programs. Section 5.106(a) proposed to identify the scope of its coverage as including recipients and subrecipients of assistance under the following CPD programs: HOME Investment Partnerships (HOME) (24 CFR part 92), Community Development Block Grant (CDBG) (24 CFR part 570), HOPWA (24 CFR part 574), ESG (24 CFR part 576), CoC (24 CFR part 578), as well as owners, operators, managers of shelters and other buildings and facilities and providers of services funded in whole or in part by any of these programs.

    Section 5.106(b) proposed to require CPD recipients, subrecipients, owners, operators, managers, and providers to establish or amend, as necessary, and administer program admissions, occupancy, and operating policies and procedures, including policies and procedures to protect individuals' privacy and security, so that equal access to programs, shelters, other buildings and facilities, benefits, services, and accommodations are provided to individuals in accordance with their gender identity. That section also proposed to require that such equal access be provided in a manner that affords equal access to the individual's family.

    Section 5.106(c) proposed to require that the placement and accommodation of individuals in facilities that are permitted to be single-sex must be made in accordance with the individual's gender identity. The proposed rule provided that, under narrow circumstances, a written case-by-case determination could be made as to whether an alternative accommodation is necessary to ensure health and safety. The proposed rule contained a prohibition for such a determination to be based solely on a person's actual or perceived gender identity or on complaints of other shelter residents when those complaints are based on actual or perceived gender identity. It also proposed to prohibit the denial of appropriate placement based on a perceived threat to health or safety that can be mitigated some other, less burdensome way (e.g., by providing the transgender shelter seeker the option to use single occupant bathing facilities). Lastly, the rule proposed that, to avoid unwarranted denials of placement in accordance with an individual's gender identity, decisions to provide accommodations based on concern for the health and safety of the individual seeking accommodations should be based on the individual's own request to be otherwise accommodated.

    Section 5.106(d) proposed to require that when a case-by-case determination based on health and safety is made under § 5.106(c), the entity providing the alternative accommodation must provide either (1) equivalent alternative accommodation, benefits, and services or (2) a referral to a comparable alternative program with availability that meets the needs of the individual.

    Section 5.106(e) proposed to require recipients, subrecipients, or providers to keep records of compliance with paragraphs (b) and the case-by-case determinations under paragraph (c) of this section, including the facts, circumstances, and reasoning relied upon that lead to any alternative admission, accommodation, benefit, or service to an individual and the individual's family; the facts and circumstances regarding the opportunities to access alternative accommodations provided to an individual and the individual's family; and the outcomes regarding referral to an alternative program of an individual and the individual's family.

    In addition, the rule proposed to amend the definition of “gender identity” at § 5.100 to separate the definitions of “actual” and “perceived” gender identity. In brief, the rule proposed to replace HUD's current definition, which mirrored the definition in the Matthew Shepard/James Byrd Hate Crimes Prevention Act of 2009 (Public Law 114-38, approved October 28, 2009) and instead adopt a definition that clarified the difference between actual and perceived gender identity.

    Lastly, the proposed rule sought to remove the prohibition on inquiries provision at § 5.105(a)(2)(ii), which prohibited providers in most circumstances from asking individuals their sexual orientation or gender identity. HUD reasoned that the provision raised several legitimate questions about implementation, and its removal would allow temporary, emergency shelters or other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities to ask an individual's gender identity for nondiscriminatory purposes, such as to determine the appropriate placement for the individual or the number of bedrooms to which a household is entitled.

    C. Recent Developments in the Interpretation of Federal Law and Applicable Research

    After HUD issued the November 2015 proposed rule, the Center for American Progress released a new study specifically focusing on discrimination experienced by transgender individuals seeking access to shelters, the Department of Justice (DOJ) and the Department of Education issued guidance for educators on providing equal access for transgender students in schools, and the Department of Health and Human Services issued a final rule to ensure equal access to health programs and activities administered by that Department or established under title I of the Affordable Care Act.

    On January 7, 2016, the Center for American Progress released the results of a discrimination telephone test, carried out across four States, that measured the degree to which transgender homeless women can access a shelter in accordance with their gender identity, as well as the types of discrimination and mistreatment they face in the process.2 The study consisted of 100 phone calls to homeless shelters in four States, over 3 months, by testers who identified themselves as transgender women seeking access to both women's shelters and general shelters. The study found that only 30 percent of the shelters contacted by the testers were willing to house the transgender women with other women, 13 percent offered to house the transgender women in isolation or with men, 21 percent refused service altogether, and another 21 percent were unsure or unclear as to whether they could house transgender women with other women. The survey results also found that women's shelters were more likely to provide services consistent with an individual's gender identity than were mixed gender shelters. During interactions on the phone with shelter employees, testers experienced the following: they were often referred to using the wrong gender or shelter employees made other statements to discredit their gender identity, shelter employees made references to the testers' genitalia or to surgery as requirements for appropriate housing, and shelter employees stated that other residents would be made uncomfortable or unsafe by the tester. Of the shelters called, 27 percent had received HUD funds at some point.

    2 Caitlin Rooney, et al., Center for American Progress and the Equal Rights Center Discrimination Against Transgender Women Seeking Access to Homeless Shelters, January 7, 2016, available at: https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.

    In May 2016, DOJ and the Department of Education released guidance summarizing the legal obligations of schools regarding transgender students.3 The guidance specifically emphasizes that schools must “treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations.” In sex-segregated activities and facilities, transgender students “must be allowed to participate in such activities and access such facilities consistent with their gender identity.” The guidance also requires schools to provide a safe environment for all students, including transgender students, and requires that schools treat students consistent with their gender identity regardless of records or identification documents indicating a different sex.

    3 Dear Colleague Letter on Transgender Students May 13, 2016, https://www.justice.gov/opa/file/850986/download.

    Also in May 2016, the Department of Health and Human Services issued final regulations entitled “Nondiscrimination in Health Programs and Activities,” which implement section 1557 of the Affordable Care Act.4 Section 1557 prohibits discrimination in health programs and activities on the basis of sex, and the rule provides that “a covered entity shall treat individuals consistent with their gender identity, except that a covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual's sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.”

    4 See 81 FR 31375, https://www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities.

    II. Changes Made at the Final Rule Stage

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

    In § 5.100, the proposed definition of “perceived gender identity” is modified so that the definition states that “perceived gender identity” means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender-related characteristics, sex assigned at birth, or identification in documents. This change was made in response to public comments stating that transgender persons often face difficulty in being accommodated in accordance with their gender identity because it is difficult to obtain identity documents that accurately list their gender identity. The words “identified in documents” were added to the definition to make clear that the identification of gender or sex on an individual's identity document may be different than a person's actual gender identity. The definition of “gender identity” in the final rule, which is unchanged from the proposed rule, makes clear that “gender identity” means the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person's perceived gender identity. Reading these definitions together, “gender identity” is therefore determined regardless of the gender identified on an individual's identity documents.

    This rule also makes a technical amendment to the definition of “sexual orientation.” The 2012 Equal Access Rule defined “sexual orientation” as “homosexuality, heterosexuality, or bisexuality,” following a definition that OPM used in the context of the Federal workforce in its publication “Addressing Sexual Orientation in Federal Civilian Employment: A Guide to Employee Rights.” OPM's publication was revised in June 2015, and HUD is amending its definition to conform to the new OPM definition, which is “sexual orientation means one's emotional or physical attraction to the same and/or opposite sex.” (See https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/addressing-sexual-orientation-and-gender-identity-discrimination-in-federal-civilian-employment.pdf.) This change in definition does not change the coverage provided by the prior definition but is simply intended to use terminology that is up-to-date.

    In § 5.105(a)(2), HUD adopts the proposal to eliminate the inquiries provision in § 5.105(a)(2)(ii). With the removal of § 5.105(a)(2)(ii), § 5.105(a)(2)(i) is redesignated as § 5.105(a)(2).

    In § 5.106, HUD makes several changes. HUD has changed the heading of this section from “Providing access in accordance with the individual's gender identity in community planning and development programs” to “Equal access in accordance with the individual's gender identity in community planning and development programs.” Although this is not a substantive change, the change appropriately emphasizes that the purpose of the rule is equal access in accordance with an individual's gender identity in CPD programs generally. Equal access ensures that, when consideration of sex is prohibited or not relevant, individuals will not be discriminated against based on actual or perceived gender identity, and where legitimate consideration of sex or gender is appropriate, such as in a facility providing temporary, short term shelter that is not covered by the Fair Housing Act 5 and which is legally permitted to operate as a single-sex facility,6 the individual's own self-identified gender identity will govern.

    5 The Fair Housing Act prohibits discrimination in the sale, rental, making unavailable, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, and national origin, and thus prohibits making housing unavailable to a person because of that person's sex. 42 U.S.C. 3601 et seq. The Fair Housing Act contains no exemptions that permit covered housing to be sex-segregated. See 42 U.S.C. 3603(b) (limited exemptions from Fair Housing Act coverage for sales of certain single family homes and for rooms or units in certain owner-occupied dwellings), and § 3607 (exemptions from Fair Housing Act coverage for private clubs and religious organizations).

    6 Temporary, emergency shelters and other buildings and facilities that are not covered by the Fair Housing Act because they provide short-term, temporary accommodations may provide sex-segregated accommodations, which they sometimes do to protect the privacy and security of individuals when the buildings and facilities have physical limitations or configurations that require shared sleeping quarters or shared bathing facilities. For purposes of this rule, shared sleeping quarters or shared bathing facilities are those that are designed for simultaneous accommodation of multiple individuals in the same space. For example, a single-user bathing facility with a lock on the door is not designated for simultaneous occupancy by multiple individuals, so it is not a “shared bathing facility” for purposes of the Equal Access Rule or this rule.

    Section 5.106(a) is revised at the final rule stage to clarify that § 5.106 applies to recipients and subrecipients of assistance from CPD, which include the specific programs identified at the proposed rule stage (HOME, CDBG, HOPWA, ESG, and CoC), as well as to the Housing Trust Fund program (with regulations at 24 CFR part 93) and the Rural Housing Stability Assistance Program (with regulations to be codified in 24 CFR part 579). As noted throughout the proposed rule, the rule was always intended to apply to recipients and subrecipients of CPD programs, as well as those who administer programs and services and provide temporary, emergency shelter funded by CPD programs, and HUD did not intend to exclude the new Housing Trust Fund and Rural Housing Stability Assistance programs from the list of CPD programs in this paragraph.

    Section 5.106(b) addresses the admissions, occupancy, and operating policies and procedures of recipients, subrecipients, owners, operators, managers, and providers covered by this rule. Revised paragraph (b) adds that policies and procedures to protect health and safety, as well as privacy and security noted in the proposed rule, must be established, maintained, or amended, as necessary, and provides that all policies must be administered in a nondiscriminatory manner. HUD recognizes that in the temporary, emergency shelters covered by this rule, privacy, security, safety, and health concerns may arise as a result of the varied populations that reside in such facilities at any given time. The rule requires policies and procedures, if such policies and procedures have not already been updated, to reflect the obligation and to document the commitment of the provider to maintain a healthy and safe environment for all occupants and respect individual privacy without doing so in a way that is discriminatory or violates applicable Federal laws and regulations.

    HUD also revises paragraph (b) to add a provision that the policies and procedures must ensure that individuals are not subjected to intrusive questioning or asked to provide anatomical information or documentary, physical, or medical evidence of the individual's gender identity. This revision was made in response to public comment advising that transgender persons and gender nonconforming persons are often asked inappropriate, intrusive questions; asked to provide evidence about their physical anatomy; or asked for medical records relating to their gender identity or identification documents that record their gender identity. There are multiple reasons why this documentation is problematic and prohibited by this rule. Homeless persons encounter difficulties in maintaining their identification documents, and individuals whose gender identities differ from sex assigned at birth experience varying levels of difficulty in updating gender markers on identification documents. These barriers make it likely that an individual seeking homeless services and whose gender identity differs from their sex assigned at birth will possess identification documents that do not reflect that individual's gender identity, if they have identification documents at all. Further, gender identity is distinct from sex assigned at birth, is not associated with physical anatomy, and may not be indicated in medical records. For these reasons, HUD agrees with public commenters that it is important that transgender or gender nonconforming persons can self-identify their gender identity orally and not be asked intrusive questions or asked to provide documentary, physical, or medical evidence to prove their gender identity.

    Lastly, revised paragraph (b) also requires that such revisions ensure that amendments to CPD programs policies and procedures continue to include the existing requirement in § 5.105(a)(2) that individuals are provided equal access to housing in CPD programs without regard to actual or perceived gender identity. While this rule's focus is on programs, owners, operators, and managers of shelters, buildings, and other facilities and providers of CPD-funded services that were not covered under HUD's 2012 Equal Access Rule, housing under CPD programs has already been required to ensure equal access to individuals based on their gender identity. HUD adds this provision to clarify that, when amending CPD program policies and procedures, they should continue to reflect the existing 2012 Equal Access Rule requirement that housing be made available without regard to gender identity.

    In § 5.106(c), which addresses placement and accommodation in temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities, HUD removes the proposed rule language that under narrow circumstances, a written case-by-case determination could be made on whether an alternative accommodation for a transgender individual would be necessary to ensure health and safety. Public commenters expressed concern that the exception could be inappropriately used to avoid compliance with the equal access requirement, and that this “exception” also targeted transgender individuals as a cause of concern with respect to health and safety. HUD was persuaded by the public commenters that the “exception” provision had the opposite effect than that intended by HUD. HUD's intention in the inclusion of this language was to strive to ensure the health and safety of transgender individuals in temporary, emergency shelters and other buildings and facilities. It was not to indicate that the very presence of transgender individuals was a cause for health and safety concerns nor to indicate, by allowing alternative accommodation, that HUD's only concern was the health and safety of transgender individuals and HUD was not concerned about any other occupants. HUD's regulations for the ESG program and the implementing guidance, make clear that temporary, emergency shelters, and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities have had, and continue to have, a responsibility to create a safe environment for all occupants, particularly those of special populations (see 24 CFR 576.400(e)(3)(iii) for more information).

    This final rule thus revises paragraph (c) of § 5.106 to provide that placement and accommodation of individuals shall be made in accordance with an individual's gender identity, and it removes language that permits an exception to this rule where a provider makes a written case-by-case determination on whether an alternative accommodation for a transgender individual would be necessary to ensure health and safety. There are various measures that HUD's providers may take to fulfill their duty to create a safe environment for all, including transgender and gender nonconforming individuals, and to ensure that HUD-funded projects are free from discrimination. As preemptive steps, providers are strongly encouraged to post a notice of rights under this rule and under HUD's 2012 Equal Access Rule on bulletin boards and in other public spaces where information is made available, to clearly establish expectations. In order to ensure that individuals are aware of their rights to equal access, HUD proposes to require owners and operators of CPD-funded shelters and facilities to post on bulletin boards and in other public spaces where information is typically made available a notice entitled “Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status for HUD's Community Planning and Development Programs,” which HUD is publishing in today's Federal Register for public comment, in accordance with the Paperwork Reduction Act of 1995. In addition, HUD Technical Assistance materials provide a sample antidiscrimination policy that providers may consider adopting to further clarify expectations to persons as they enter the project.7

    7 See Equal Access for Transgender People: Supporting Inclusive Housing and Shelters https://www.hudexchange.info/resources/documents/Equal-Access-for-Transgender-People-Supporting-Inclusive-Housing-and-Shelters.pdf.

    Even with antidiscrimination policies clearly articulated, occupants may express concerns or engage in other behavior toward transgender or gender nonconforming persons. If some occupants initially present concerns about transgender or gender nonconforming occupants to project staff and managers, staff should treat those concerns as opportunities to educate and refocus the occupants. HUD recognizes that, even then, conflicts may persist and complaints may escalate to verbal or physical harassment. In these situations, providers should have policies and procedures in place to support residents and staff in addressing and resolving conflicts that escalate to harassment. These policies should include specific behaviors that violate standards of respectful behavior, escalate corrective actions if an individual repeats the same violation of standards after educational opportunities are offered, and focus corrective actions on aggressors who violate project rules, not on the person targeted by the harassment. If an occupant continues to harass a transgender individual, the provider should consider requiring that the harassing occupant stay away from the transgender individual, making changes in sleeping arrangements without limiting the freedom of the transgender individual, or pursuing other interventions. When appropriate, providers may consider expelling harassing residents, or any staff or volunteer members who perpetuate discrimination. In no instance, however, should any steps taken to address harassment or discrimination involve expulsion of harassed occupants.

    Revised paragraph (c) provides for post-admission accommodations, where after an individual has been admitted to a temporary, emergency shelter, or other building or facility with shared sleeping quarters or shared bathing facilities, the provider must take non-discriminatory steps that may be necessary and appropriate to address privacy concerns raised by all residents or occupants, and, as needed, update its admissions, occupancy, and operating policies and procedures. These provisions apply to all individuals, regardless of gender identity. If an individual requests certain accommodations because of privacy concerns, staff may offer those accommodations to that individual but may not require that the individual use the accommodations. For example, if available, staff may offer that occupant a room, floor, or bed that is close to staff workstations or access to rooms, floors, or beds set aside for residents with increased vulnerability. At the request of an individual, providers may also offer use of a single-occupant bathroom or provide certain times during the day that a shared bathroom can be scheduled by any client with a request to use a private bathing facility. If feasible, providers can ensure that toilet and shower stalls have locking doors or, at a minimum, curtains to allow for modesty and privacy. For shower use, providers may consider implementing a schedule for all clients if communal showers are the only available type of shower. HUD stresses that all such accommodations should be offered only to fulfill the request of individuals seeking accommodations for themselves, should be available to clients based on a variety of factors that can increase one's vulnerability, and should not be restricted for use only by transgender or gender nonconforming residents. In no case may a provider's policies isolate or segregate transgender or gender nonconforming occupants.

    This final rule removes from § 5.105(d) in the proposed rule the language relating to referrals, HUD has removed the provision from the proposed rule that permitted housing providers to make a written case-by-case determination that a transgender individual should receive an alternative accommodation for health and safety reasons. This does not preclude the possibility that any occupant may request a referral to an alternate project for health and safety reasons, and in such cases staff may provide a referral or offer clients a hotel or motel voucher.8

    8 In the ESG program, a hotel or motel voucher may be offered only if there are no other accessible or appropriate emergency shelter beds available for that night.

    This final rule redesignates the recordkeeping requirements from § 5.106(e) to 5.106(d) and states that providers must document and maintain, for a period of 5 years, records of compliance with the requirements of this rule regarding establishing or amending policies and procedures. This rule also removes the more specific requirements related to case-by-case determinations and referrals.

    To strengthen enforcement mechanisms for this rule, HUD is publishing in today's Federal Register a notice for public comment, in accordance with the Paperwork Reduction Act of 1995, entitled “Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status for HUD's Community Planning and Development Programs.” HUD proposes to require owners and operators of CPD-funded shelters and facilities to post this notice on bulletin boards and in other public spaces where information is typically made available.

    III. Public Comments Submitted on Proposed Rule and HUD's Responses A. Overview of Public Comments

    The public comment period for the November 20, 2015, proposed rule closed on January 19, 2016. As of the close of the comment period, HUD received approximately 184 public comments, in addition to a number of mass mailings, from a variety of commenters, including housing authorities, direct legal services providers, community development agencies, homeless shelters, healthcare providers, social workers, clergy, counselors, nonprofit social service providers, and LGBT advocacy organizations. The overwhelming majority of comments were supportive of the rule. Some commenters, while supporting the rule, suggested modifications, and a minority of the commenters opposed the rule. Commenters opposing the rule stated that it failed to balance the needs of all shelter occupants and lacks flexibility. All comments can be viewed at http://www.regulations.gov.

    1. Commenters Supporting the Rule

    Many commenters supporting the rule suggested no changes and offered a variety of reasons why they supported the rule and why HUD should conclude the rulemaking as expeditiously as possible. Commenters stated that transgender persons, like all persons, need access to safe shelter and housing and that transgender persons are some of the most vulnerable members of society. Commenters stated that transgender individuals are disproportionately represented in the homeless population because of the frequent discrimination they face at home, in school, and on the job. Some cited a survey showing that one in five transgender or gender nonconforming individuals experienced homelessness at some point in their lives because of their transgender status. Commenters stated that transgender individuals were at greater overall risk of violence, murder, and homelessness-related death than people who are not transgender and may also experience mental and physical health problems because of the abuse they face.

    Commenters stated that the rule would promote civil rights and expanded housing opportunity by addressing the effects of stigma on equal access to housing for transgender and gender nonconforming persons. Commenters supporting the rule frequently stated that the rule would eliminate major barriers to access to safe, temporary, emergency shelter and other facilities and programs for transgender and gender nonconforming persons, particularly vulnerable subgroups within the population that need access to such accommodations. Some commenters stated that the rule will yield other positive societal outcomes. Many commenters provided extensive data to support the rule, including a January 2016 study conducted by the Center for American Progress that found, among other things, that only 30 percent of shelters studied were willing to accommodate transgender women in accordance with their gender identity. The commenters stated that LGBT providers were twice as likely to be willing to provide a shelter-seeker with accommodations in accordance with the individual's gender identity; that women's shelters were more likely than mixed-gender shelters to provide a shelter-seeker with accommodations in accordance with the individual's gender identity; and that many shelters did not correctly classify shelter-seekers in accordance with the individual's gender identity or stated that transgender or gender nonconforming individuals would have to submit to invasive medical examinations or inquiries, or demonstrate that they had undergone surgery, as a prerequisite to obtaining shelter.9

    9 Center for American Progress, Discrimination Against Transgender Women Seeking Access to Homeless Shelters (Jan. 7, 2016), available at https://cdn.americanprogress.org/wp-content/uploads/2016/01/06113001/HomelessTransgender.pdf.

    Other commenters supporting HUD's rule stated that the rule is needed because the willingness to house transgender people in accordance with their gender identity currently varies, depending on State laws and shelter type, and HUD's rule would provide some consistency. Commenters stated that because 32 States lack explicit gender identity protections in housing, HUD's rule will help ensure equal access to shelters nationwide for transgender and gender nonconforming individuals. Commenters said that even in jurisdictions with express protections for transgender individuals, discriminatory practices still persist. Commenters stated that HUD's rule is in step with recent Federal case law holding that discrimination on the basis of sexual orientation and gender identity constitutes unlawful discrimination on the “basis of sex,” in violation of Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    2. Comments Opposing the Rule

    Commenters opposing the rule provided many reasons for their opposition but the primary reason concerned the safety of nontransgender individuals in a shelter. Commenters stated that the rule should not open female, single-sex spaces to individuals who were born male, citing their fear that individuals could deliberately misrepresent their gender identities and compromise the privacy or safety of vulnerable women and children. Commenters stated that there is a risk of causing female survivors of male-perpetrated domestic or sexual violence, who are disproportionately represented in the homeless population and shelters, to feel unsafe. Commenters said the rule does not respect legitimate safety and privacy concerns of biological women, and that the rule treats women's fear of being assaulted in a shelter as unreasonable “bigotry.” Commenters stated that the rule should require providers to create segregated facilities for transgender individuals, rather than placing individuals into male or female facilities that correspond to the individual's gender identity. Commenters stated that transgender men are also vulnerable to assault in shelters. Several commenters opposing the rule cited to articles recounting the stories of individuals who had been raped in shelters. A commenter stated that it is untrue that transgender women can be safe only in a women's shelter. Commenters stated that the rule must balance the various needs, perspectives, personal histories, and expectations of privacy of both transgender individuals and other shelter seekers. Commenters stated that the rule should provide equal consideration to the health and safety concerns of transgender and nontransgender individuals and guidelines on what constitutes threats to health and safety for transgender and nontransgender individuals.

    3. Responses to Comments in Support and Opposition

    HUD appreciates all of the comments offered in response to HUD's proposed rule. Comments supporting the rule as well as comments opposing the rule gave HUD much to consider in the development of this final rule. While HUD is proceeding with this rulemaking, HUD is making the changes highlighted in Section II of this preamble.

    B. Significant Public Comments and HUD's Responses

    This section presents significant issues raised by commenters and HUD's responses to these comments. The issues presented in this section highlight changes requested by commenters, and questions about or requests for clarifications about certain provisions of the rule.

    Comment: Commenters stated that the rule exceeds HUD's current statutory mandate because Congress has not given HUD the authority to prohibit discrimination based on gender identity. Commenters stated that the rule's definitions of “gender identity” and “perceived gender identity” are overbroad and exceed HUD's authority by creating a new protected class and that HUD failed to specify the basis for this prohibition of discrimination.

    HUD Response: The rule creates additional program requirements to ensure equal access for transgender and gender nonconforming persons, in accordance with their gender identity, in shelters, buildings, facilities, and programs funded in whole or in part by CPD. The creation of such program requirements is well within the scope of HUD's authority. HUD's mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. This mission encompasses providing shelter for transgender and gender nonconforming persons, who have faced significant difficulty in obtaining access to shelters, and buildings and facilities that provide shelter. Excluding any eligible person from HUD-funded temporary, emergency shelters, buildings, facilities, housing, or programs because of that person's gender identity or nonconformance with gender stereotypes would contravene HUD's responsibility under the Department of Housing and Urban Development Act to work to address “the needs and interests of the Nation's communities and of the people who live and work in them.” (See 42 U.S.C. 3531.) Congress has repeatedly charged HUD with serving the existing housing needs of all Americans.10

    10 See section 2 of the Housing Act of 1949 (42 U.S.C. 1441); section 2 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701t), sections 101 and 102 of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12701-702), and section 2(b) of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 note).

    Congress has not only given HUD this broad mission but also given HUD broad authority to fulfill this mission and implement its responsibilities through rulemaking. Section 7(d) of the Department of Housing and Urban Development Act specifically states that the Secretary “may make such rules and regulations as may be necessary to carry out his functions, powers, and duties.” Moreover, as discussed in the preamble to HUD's 2012 Equal Access Rule and as discussed in greater detail in response to the following comment, HUD is charged with administering and enforcing the Fair Housing Act, which prohibits discrimination on the basis of protected characteristics, including sex. Discrimination because of gender identity is covered within the Fair Housing Act's prohibition of sex discrimination. In 2010, HUD issued a memorandum recognizing that sex discrimination includes discrimination because of gender identity. In 2012, the Equal Employment Opportunity Commission (EEOC) reached the same conclusion with regard to gender identity claims, “clarifying that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.” 11 Following the EEOC's decision, the U.S. Attorney General also concluded that:

    11Macy v. Dept. of Justice, No. 0120120821, 2012 EEOPUB LEXIS 1181, *13 (EEOC Apr. 20, 2012); see also Lusardi v. Dept. of the Army, No. 0120133395, 2015 EEOPUB LEXIS 896, *17 (EEOC Apr. 1, 2015).

    the best reading of Title VII's prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination “because of . . . sex” includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.12

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

    HUD reaffirms its view that discrimination based on gender identity is sex discrimination.

    Comment: HUD received comments on sex discrimination under the Fair Housing Act and the proposed requirement that individuals be provided accommodations in accordance with their gender identity. A commenter stated that, while it is helpful that HUD already considers the Fair Housing Act's provision against discrimination on the basis of sex to cover nonconforming gender expression, it would be helpful to make that protection explicit in the new rule.

    HUD Response: HUD does not believe it is necessary to modify the proposed regulatory text as the commenter recommends. In § 5.100 of the proposed rule, HUD included a definition of “perceived gender identity” in order to differentiate between actual gender identity and perceived gender identity for purposes of this rule and the 2012 Equal Access Rule. Under that definition, perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender-related characteristics, or sex assigned to the individual at birth. In the final rule, the definition is amended to read as follows: Perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender-related characteristics, or sex assigned to the individual at birth or identified in documents. Because the definition of perceived gender identity included in the proposed rule and adopted by this rule includes gender expression, § 5.105(a)(2) of the rule addresses the commenter's concern that HUD-assisted or -insured housing shall be made available without regard to an individual's gender expression. HUD does not believe any revision to the text of § 5.105(a)(2) is necessary to address this concern. Any suggested amendment to Fair Housing Act regulations is outside the scope of this rulemaking.

    Comment: Some commenters stated that the rule should create similar equal access to housing policies for transgender or gender nonconforming persons in all emergency shelters and facilities. Another commenter stated that the Fair Housing Act does not prohibit discrimination based on gender identity in shelters. A commenter stated that the lack of a law prohibiting discrimination against transgender persons in shelters has not stopped rescue missions and other shelter providers from meeting the diverse needs of transgender persons in crisis.

    HUD Response: While HUD appreciates that commenters want to have this rule apply to all emergency shelters, the scope of this rulemaking is limited to shelters, other buildings and facilities, and programs funded in whole or in part by CPD. CPD is the HUD office that funds various types of shelters. While HUD believes that all emergency shelters, including those temporary, emergency shelters that are not subject to the requirements of the Fair Housing Act and that HUD does not fund, should provide equal access in accordance with an individual's gender identity, imposing those requirements on all emergency shelters is outside the scope of this rulemaking.

    With respect to the commenter's statement about the Fair Housing Act, HUD seeks to clarify that, contrary to the commenter's stated view, the Fair Housing Act's prohibition of discrimination because of sex does include the prohibition of discrimination based on gender identity or nonconformance with gender stereotypes, which includes discrimination against an individual having a gender identity that does not conform to an individual's sex assigned at birth. While HUD disagrees with the commenter's broad statement that there is no law prohibiting discrimination based on gender identity in shelters, HUD agrees that it is beneficial for all shelters, including rescue missions, to continue to provide accommodation and services to transgender persons.

    Comment: A commenter sought clarity regarding the application of the Fair Housing Act to shelters. The commenter asserted that the Fair Housing Act does not apply to homeless shelters because, in the commenter's view, they are not “dwellings” covered under the Fair Housing Act. The commenter stated that the term “dwelling” is not well-defined in case law, that emergency shelters are not dwellings under the Act; and that the prohibitions of section 3604 of the Fair Housing Act do not apply to “free” shelters and similar facilities because, in the commenter's view, such prohibitions only apply to housing that is for sale or rental. The commenter stated that, if HUD adopted a statement that the Fair Housing Act does not apply to homeless shelters, such adoption would “strengthen fair housing and mitigate confusion and misinterpretation among providers, fair-housing agencies, and shelter guests.”

    HUD Response: The commenter misunderstands HUD's statement about emergency shelters and the coverage of the Fair Housing Act. Contrary to the commenter's assertion, HUD does not categorically exclude temporary, emergency shelters providing short-term housing accommodations from coverage under the Fair Housing Act. In fact, HUD's established policy and regulations explicitly identify homeless shelters and other short-term or transient housing as “dwellings” subject to the Act.13 The Act defines “dwelling” as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families” and includes vacant land.14 Thus, shelters generally are covered within the definition of dwelling, and many courts have held shelters and other short-term accommodations to be dwellings covered by the Fair Housing Act.15 However, some shelters may not qualify as a “dwelling” under the Fair Housing Act, and, therefore, HUD has endorsed the following multiple factor analysis for determining whether a shelter is a covered dwelling for purposes of the Fair Housing Act: (1) Length of stay; (2) whether the rental rate for the unit will be calculated based on a daily, weekly, monthly, or yearly basis; (3) whether the terms and length of occupancy will be established through a lease or other written agreement; (4) what amenities will be included inside the unit, including kitchen facilities; (5) how the purpose of the property will be marketed to the public; (6) whether the resident possesses the right to return to the property; and (7) whether the resident has anywhere else to which to return.16

    13See, e.g., Final Report of HUD Review of Model Building Codes, 65 FR 15740, 15746, 15747 (March 23, 2000) (“HUD specified as dwellings covered by the Act . . . such short-term housing as . . . homeless shelters.”). See also, e.g., 24 CFR 100.201 (the definition of “dwelling units” includes, e.g., sleeping accommodations in shelters intended for occupancy as a residence for homeless persons); Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines, 56 FR 9472, 9500 (March 6, 1991) (same); Implementation of the Fair Housing Amendments Act, 54 FR 3232, 3245 (January 23, 1989) (same).

    14 42 U.S.C. 3602(b).

    15 See, e.g., Schwartz v. City of Treasure Island, 544 F.3d 1201, 1215 (11th Cir. 2008) (halfway houses for recovering addicts); Lakeside Resort Enter. v. Bd. of Supervisors of Palmyra Twp., 455 F.3d 154, 158-60 (3rd Cir. 2006) (treatment facility); Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996) (homeless shelter); Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 1103 (3rd Cir. 1996) (nursing home); U.S. v. Columbus Country Club, 915 F.2d 877, 881 (3rd Cir. 1990) (summer bungalows); Connecticut Hosp. v. City of New London, 129 F. Supp. 2d 123, 135 (D. Conn. 2001) (halfway houses for substance abuse treatment); Lauer Farms, Inc. v. Waushara County Board of Adjustment, 986 F. Supp. 544, 557, 559 (E.D. Wis. 1997) (migrant farmworker housing); Louisiana Acorn Fair Hous. v. Quarter House, 952 F.Supp. 352, 359-60 (E.D. La. 1997) (time-share unit); Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D. Ill. 1995) (homeless shelter); Baxter v. City of Belleville, 720 F. Supp. 720, 731 (S.D. Ill. 1989) (residence for terminally ill); U.S. v. Hughes Mem'l Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (home for needy children).

    16See 65 FR at 15746.

    Determining whether a particular emergency shelter is a covered dwelling for purposes of the Fair Housing Act requires application of the multiple factors to its operation. No single factor is determinative. For instance, the absence of a rental fee or lease does not disqualify an accommodation from coverage under the Fair Housing Act.17 Further, contrary to the commenter's view, section 3604 of the Fair Housing Act does not only apply to discriminatory conduct that involves a sale or rental. The Fair Housing Act has no such limitation. In addition to prohibitions against refusals “to sell or rent after making of a bona fide offer” and “to refuse to negotiate for the sale or rental,” section 3604(a) also prohibits “otherwise mak[ing] unavailable or deny[ing]” a dwelling to any person protected under the Fair Housing Act.18 HUD and courts have long made clear that a variety of conduct that does not involve sale or rental can make housing otherwise unavailable.19 Similarly, section 3604(b) is not limited to conduct involving a sale or rental, as it also prohibits discrimination in the “provision of services or facilities in connection” with a dwelling.20 HUD strongly disagrees that adopting a broad statement that the Fair Housing Act does not apply to homeless shelters would strengthen fair housing. HUD also emphasizes that this rule covers CPD-funded shelters and other buildings and facilities regardless of whether the facility qualifies as a dwelling under the Fair Housing Act.

    17 See, e.g., Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D. Ill. 1995) (homeless shelter did not charge rent).

    18 42 U.S.C. 3604(a).

    19 See, e.g., Ojo v. Farmers Grp., Inc., 600 F.3d 1205, 1208 (9th Cir. 2010) (discriminatory pricing and denial of homeowners insurance violates 804(a) and (b)); Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1357-58 (6th Cir. 1995) (same); Keith v. Volpe, 858 F.2d 467, 482-484 (9th Cir. 1988) (municipal's refusal to permit low-income housing violates 804(a)). See also, e.g., 24 CFR 100.70(d)(4) (refusing to provide municipal services or property or hazard insurance because of protected class).

    20 42 U.S.C. 3604(b); see, e.g., 24 CFR 100.65(b)(2) (failing or delaying maintenance because of protected class).

    Comment: Some commenters stated that the proposed rule is inconsistent with the Fair Housing Act, which forbids sex discrimination as to covered dwellings but not as to free, temporary, emergency shelters or other buildings or facilities, and which, therefore, evinces the intent of Congress to permit single-sex housing in the latter case. Commenters expressed concern that the decision by Congress to allow single-sex facilities that do not qualify as dwellings would be unenforceable if this rule is implemented as proposed; for example, if a women's shelter were required to admit a biological man based merely upon his assertion that he “identifies as” a woman, or if a men's shelter were required to admit a biological woman based merely upon her assertion that she “identifies as” a man.

    HUD Response: As previously stated, the rule is not inconsistent with the Fair Housing Act. While the Fair Housing Act includes nondiscrimination requirements applicable to dwellings covered by the Act, it does not prohibit HUD from establishing additional program requirements through rulemaking. Temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require shared sleeping quarters or bathing facilities and that do not qualify as dwellings under the Fair Housing Act may operate single-sex shelters unless doing so would violate some other Federal, State, or local law. Under this rule, such shelters or other buildings and facilities funded by programs administered by CPD 21 must determine placement in such single-sex facilities in accordance with each applicant's or occupant's gender identity, regardless of sex assigned at birth or other factors. As noted in response to a prior comment, HUD's establishment of programmatic requirements for temporary, emergency shelters and other buildings and facilities funded through HUD programs is well within HUD's statutory authority and an important part of HUD's mission in ensuring access to housing for all Americans. Contrary to the public comment that suggests what Congress's intent was in creating single-sex facilities, HUD does not opine on Congress's intent behind permitting single-sex facilities, but does make clear in this rule that, for purposes of determining placement in a single-sex facility, placement should be made consistent with an individual's gender identity. This rule does not attempt to interpret or define sex.

    21 HUD provided similar guidance to recipients and subrecipients that place eligible persons in single-sex temporary, emergency shelters or other facilities receiving ESG, CoC, or HOPWA funds. See Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities, (Notice: CPD-15-02 (February 20, 2015)).

    Comment: One commenter expressed concern that Congress would see no need to enact the Equality Act, a bill that would expressly forbid discrimination in housing on the basis of sexual orientation and gender identity, once HUD issued a rule prohibiting such discrimination.

    HUD Response: While HUD appreciates the commenter's desire to see Congress enact new legislation expanding antidiscrimination protections in housing, HUD does not believe the introduction of such legislation warrants delaying issuance of this important rule. Because many transgender persons are being denied access to temporary, emergency shelters and other building and facilities or are being placed and served in such shelters in accordance with their sex assigned at birth instead of in accordance with their gender identity, HUD believes it is necessary to issue this rule at this time to ensure that transgender and gender nonconforming persons are accorded equal access and are accommodated in accordance with their gender identity in programs, shelters, buildings, and facilities assisted by CPD. Given that this rulemaking applies only to providers that receive HUD funds and not more broadly, HUD does not believe that its rulemaking in this important area will impact any broader legislative action that Congress may choose to take.

    Comment: Commenters stated that the rule is not based on sufficiently exhaustive research and data, such as interviews with people not in the LGBT community, and only presents one-sided research on the issue of gender identity. A commenter said that while the rule notes that many transgender shelter-seekers would choose sleeping on the street rather than a shelter for their sex assigned at birth, HUD's rule does not address whether biological women would choose to sleep on the streets if their only other option were to share sleeping and bathing spaces with anatomically biological males who self-identify as women. Commenters stated that, before HUD institutes this rule, HUD needs more research on what risks placing males in female-only facilities will pose to women, and HUD should continue to search for solutions for providing safe services for particularly vulnerable males and, if vulnerable males must be placed at a women's shelter, female clients should be able to sleep, bathe, and use the toilet away from biological males.

    HUD Response: As HUD program participants and the public are aware, HUD spent considerable time studying this issue. During the development of HUD's 2012 Equal Access Rule, commenters requested HUD to address the issue of temporary, emergency shelters that contain shared sleeping quarters and shared bathing facilities. HUD, however, declined to address that issue in the 2012 Equal Access Rule because of the need to conduct further research and examination of the issue. During the time since the 2012 Equal Access Rule was issued, HUD monitored and reviewed its own programs, national research, and other Federal agency policy to determine if transgender individuals had sufficient access to temporary, emergency shelters or if additional guidance or a national policy was warranted. HUD considered the issue not only from the perspective of transgender persons and other gender nonconforming persons, but also from the perspective of individuals whose sex assigned at birth and whose gender identity are the same. HUD has learned through its review that all individuals, including transgender persons and other gender nonconforming persons, can be safely accommodated in shelters and other buildings and facilities in accordance with their gender identity. Privacy concerns can be addressed through policy adjustments, such as the use of schedules that provide equal access to bathing facilities, and modifications to facilities, such as the use of privacy screens and, where feasible, the installation of single occupant restrooms and bathing facilities. Further, the 2016 Center for American Progress study cited in the Background section of this preamble revealed that shelters were willing to provide transgender women with appropriate shelter only 30 percent of the time. Given the 4-year examination of this issue prior to this rule and the recent evidence of continued and widespread practices that deny access or subject transgender individuals to unequal treatment, HUD is ready to address this matter in regulation and believes that this final rule sets the right approach.

    Comment: Commenters stated that because the rule requires shelters and other programs and services to change their policies and procedures, oversight and accountability should be created or strengthened. Commenters stated that current lack of oversight within the shelter and emergency housing system threatens the lives of transgender, gender nonconforming, and intersex people; subjects them to violence and degradation without any accountability or protection; and violates their basic human rights and the equal protections that should be accorded them. Commenters stated that HUD should clarify, in the final rule or in another form, how HUD will monitor and enforce the CPD Equal Access Rule, including an amendment stating that without meaningful monitoring and enforcement as is done for protected groups under the Fair Housing Act, the promise of the rule may go unfulfilled. Other commenters stated that the system for filing complaints needs to be improved, and a complaint filing system needs to be incorporated at the local level, where marginalized transgender and gender nonconforming individuals seeking shelter have ready access to advocates who can assist them. A commenter stated that no organization should receive Federal funds without standing proof of compliance.

    HUD Response: HUD agrees that safety, respectful treatment, and equal access are critical issues for transgender and gender nonconforming individuals, as they are for everyone, and HUD's regulations for the ESG program make it clear that all ESG-funded emergency shelters, including those with configurations that require shared sleeping quarters or shared bathing facilities, have had, and continue to have, a responsibility to create a safe environment for all occupants, particularly those of special populations (see 24 CFR 576.400(e)(3)(iii) for more information). Recipients, subrecipients, owners, operators, and managers of temporary, emergency shelters and other buildings and facilities and providers of services are expected to take the steps necessary to comply with this rule and maintain safe conditions for all shelter and facility residents and employees. When there is a threat to the safety of any resident, HUD expects recipients, subrecipients, and shelter or facility owners, operators, managers, and providers to take appropriate steps to address such threats. Such mitigating steps may include proactive measures to reduce risks such as increasing the shelter's security personnel, making adjustments to a facility's operating policies and schedules, and modifying shelter facilities to provide a single occupant bathing facility. HUD has heard from providers that adjusting a facility's operating policies and schedules is usually sufficient and does not cost additional funds, and thus HUD encourages agencies to start with this modification. HUD also notes that, for additional modifications that are necessary, some funded facilities, such as those under the ESG program, can use ESG funds to modify the shelter facility or provide additional security.

    HUD believes that by requiring equal access for transgender individuals and other gender nonconforming persons in this regulation, HUD will be better able to monitor and enforce actions required to ensure equal access in temporary, emergency and other CPD-assisted buildings, facilities, and programs. Section 5.106(b) requires that recipients, subrecipients, operators, managers, and providers of temporary, emergency shelters, other buildings and facilities, programs, and services update their policies, if not already updated, to comply with providing equal access, which HUD can review when monitoring its recipients', subrecipients', and providers' compliance with the new requirements established by this final rule. In addition, § 5.106(d) requires that providers must document and maintain records of compliance with the requirements in § 5.106(b) of this rule for a period of 5 years.

    Transgender and other gender nonconforming persons are encouraged to file complaints if they have been denied equal access to temporary, emergency shelters, other buildings and facilities, programs, or services in accordance with their gender identity. Individuals may file complaints of discrimination based on gender identity by calling 1-800-669-9777 (toll-free) or online at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint. Persons who are deaf or hard of hearing or who have speech impairments may file a complaint via TTY by calling the Federal Relay Service at 1-800-877-8339 (toll-free).

    Transgender and other gender nonconforming persons are encouraged to file complaints with HUD's CPD program office if they have been denied equal access to any services, accommodations, or benefits under CPD programs. Whenever a recipient (including subrecipients) of HUD funds fails or refuses to comply with program requirements, whether in statute or regulation, such failure or refusal shall constitute a violation of the requirements under the program in which the recipient is operating, and the recipient is subject to all sanctions and penalties for violation of program requirements, as provided for under the applicable program. Sanctions may include the withholding of HUD assistance. In addition, HUD may pursue an enforcement action when the Fair Housing Act is implicated. A housing provider who is found to have violated the Fair Housing Act may be liable for actual damages, injunctive and other equitable relief, civil penalties, and attorney's fees. As previously discussed, along with this rule, HUD is publishing in today's Federal Register for public comment a notice entitled “Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status for HUD's Community Planning and Development Programs” that HUD proposes to require owners or operators of CPD-funded programs and facilities to post on bulletin boards and in other public spaces.

    Comment: A commenter stated that the rule may place a significant burden upon the associational and religious liberty of beneficiaries and other stakeholders; for example, by requiring residents to share facilities with opposite-sex adults where their religions prohibit that.

    HUD Response: The exclusion of an individual or family from CPD-funded shelter because the individual is transgender or the family has one or more transgender members is inconsistent with HUD's mission to ensure decent housing and a suitable living environment for all. It is equally inappropriate to isolate or ostracize individuals because their gender identity is not the same as their sex assigned at birth. It is incumbent on HUD to ensure that the regulations governing its housing programs make clear that such arbitrary exclusion, isolation, and ostracism will not be tolerated in HUD-assisted housing and shelters. Moreover, as noted in response to prior comments, in dwellings covered by the Fair Housing Act, exclusion or unequal treatment based on an individual's gender identity or nonconformance with gender stereotypes is discrimination because of sex and violates the Act. HUD would not tolerate denial of access, isolation, or ostracism on the basis of race, color, national origin, or disability relating to one shelter resident in order to accommodate the religious views of another shelter resident. The same is true with respect to the treatment of transgender and other gender nonconforming persons.

    Faith-based organizations have long been involved in HUD's programs and provide many valuable services to low-income populations served by HUD. It is HUD's hope that faith-based organizations will continue to actively participate in HUD's CPD programs and provide services to transgender persons in accordance with the requirements set in this rule.

    Comment: A commenter stated that the rule does not reflect the reality of providing shelter to people in challenging environments and with limited resources. Commenters stated that HUD should consider the following: (1) Providing additional resources to shelters to help them meet the privacy, health, and safety needs of clients; (2) examining what scope of client interview is permissible to enable staff to identify an attempted misuse of the proposed mandate without fear of legal challenge; (3) determining whether staff would be placed in an untenable position of pressure to accede to a request or demand contrary to their situational awareness and the reasonable concerns of other (often traumatized) shelter clients; (4) examining how a provider would gather timely and appropriate information that it believes is relevant to the actual situation but not necessarily a matter of health or safety; (5) determining whether the privacy concerns of other clients are legitimate criteria for placement; (6) examining how single-sex women shelter providers will reconcile differences between the Violence Against Women Act's (VAWA) “due consideration” approach for single-sex housing and the mandate in this rule, and how shelter providers will be expected to reconcile differences between the mandate of this regulation and the often conflicting regulations and guidance provided by other Federal, State and local housing agencies. A commenter said that the proposed rule will increase guesswork and the paperwork burden surrounding client placement and expressed concern about the legal repercussions to a provider for denying placement where there is a question as to “valid” gender identity.

    HUD Response: HUD appreciates the items for consideration raised by the commenters and these were the very issues that HUD did, in fact, take into consideration before issuing this CPD Equal Access Rule, more than 4 years after the 2012 Equal Access Rule. In addition, before commencing this rulemaking, on February 20, 2015, CPD released Notice CPD-015-02, “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities,” applicable to CPD's HOPWA, ESG, and CoC programs. This notice provides that HUD expects recipients, subrecipients, and providers to accommodate individuals in accordance with the individual's gender identity.22 HUD has had over 1 year of experience with this guidance in place and such experience further informed HUD in development of the final rule. There is no reason to assume that transgender persons pose risks to health or safety. Indeed, experience under this guidance has shown that transgender and other gender nonconforming persons can be and have been safely accommodated in accordance with their gender identity in single-sex facilities without the types of disruptions feared by the commenter.

    22 See notice at https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

    In response to the commenter's concern about the extent of questioning and investigation that shelter staff may perform prior to determining appropriate accommodations for transgender and other gender nonconforming persons, HUD has made modifications to the proposed rule at this final rule stage. Specifically, in § 5.106(b) of this final rule, HUD makes clear that it is inappropriate to subject individuals seeking accommodations to unnecessary, intrusive questioning about their gender identity or to ask them to provide anatomical information or documentary, physical, or medical evidence of their gender identity. Examples of unnecessary, intrusive questioning would be asking about surgeries, anatomy, and any other topics that are not necessary for placing and serving a client in the facility. Consistent with the approach taken by other Federal agencies, HUD has determined that the most appropriate way for shelter staff to determine an individual's gender identity for purposes of a placement decision is to rely on the individual's self-identification of gender identity. As for the comment about how to “reconcile differences between the VAWA's `due consideration' approach to single-sex housing,” HUD reviewed DOJ's guidance regarding the VAWA's nondiscrimination provision and does not see a conflict that needs to be reconciled.

    HUD recognizes that emergency shelters are not the ideal placement for anyone, and that is why HUD is encouraging communities to move individuals and families into permanent housing as quickly as possible. In the meantime, HUD recognizes that there are security risks in operating shelters, but the obligation to provide for safety and security is not new, and the denial of equal access cannot be justified based on unfounded concerns about safety or security. Under this final rule, policies and procedures for CPD programs covered by this rule will have to include, if appropriate, provisions on nondiscriminatory measures to ensure the health, safety, security, and privacy of all occupants and staff in accordance with applicable Federal laws and regulations. Further, under this rule, recipients, subrecipients, owners, operators, managers, and providers of shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities must take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants, and, as needed, update their admissions, occupancy, and operating policies and procedures. It would be appropriate for a recipient, subrecipient, owner, operator, manager, or provider to update its operating policies and procedures to reflect nondiscriminatory steps to address privacy concerns if providers repeatedly receive the same request from occupants that can be accommodated in the same manner. However, an update to their policies and procedures in order to address rare case-specific situations may not be necessary, although an exception to policies and procedures may be appropriate in such circumstances to avoid infringement on an individual's privacy concern. HUD believes that this final rule clarifies compliance and greatly reduces responsibility of the staff to determine gender identity for the purposes of placement.

    Comment: A commenter stated that the proposed paperwork and record retention requirements of the proposed rule distract from the prime objective of shelters, disincentivizes participation in HUD programs, and make meeting the overarching objective of ensuring access to shelter for all more costly and burdensome.

    HUD Response: This final rule eliminates most of the provisions of the proposed rule that required recordkeeping requirements, and as a result HUD has removed most of the recordkeeping requirements in this final rule. The only recordkeeping requirement that remains is the requirement to maintain records of policies and procedures to ensure that equal access is provided, and individuals are accommodated, in accordance with their gender identity. This requirement will aid HUD in monitoring compliance with this rule and taking enforcement action where needed.

    Comment: Commenters expressed support for the rule's definitions of gender identity and perceived gender identity. A commenter said the original definition of gender identity encouraged discrimination by implying or directly giving providers the ability to determine gender through discriminatory perceptions based on gender stereotypes. A commenter stated that “transgender women are women and transgender men are men.” Commenters stated that the rule's separation of definitions of actual and perceived gender identity will help to ensure that LGBT individuals receive equal access to shelter, for example, by clarifying concepts that may be unfamiliar to grant recipients.

    HUD Response: HUD appreciates the commenter's support for the revised definition and agrees that it is important to differentiate between actual gender identity and perceived gender identity. As discussed earlier, the definition of “perceived gender identity” in this final rule includes a perception based on documents, to make clear that the identification of gender or sex on an individual's identity document may be different than a person's actual gender identity, and that the perceived gender identity of an individual based on information on the documents may not be the basis of discrimination against that individual.

    Comment: Commenters stated that HUD's rule should allow persons to determine gender identity and expression free from harassment and violence, whether actual or perceived gender. Commenters stated that they appreciated that the definition of “perceived gender identity” covers discrimination based on gender expression, and they urged HUD to include consistent clarifying language to this effect in both the preamble to the final rule and in training and technical assistance for grantees.

    HUD Response: As HUD noted in a prior response, by incorporating gender expression into the definition of perceived gender identity, the final rule requires recipients, subrecipients, and providers to make shelter available without regard to gender expression. HUD will take the commenter's recommendations into account when developing training and technical assistance materials.

    Comment: Commenters stated their belief that self-reported gender identity should be afforded a lesser status than binary biological sex, because gender is subjective, mutable, and theoretical, whereas biological sex is objective, immutable, and demonstrable. Commenters stated that research demonstrates a lack of scientific consensus as to transgender status or that gender fluidity is a mental illness. Commenters stated that the rule contravenes the Constitution's recognition of a “fundamental, irreducible reproductive asymmetry” between women and men. Commenters stated that the rule should require the use of verifiable criteria, e.g., medical history, to establish the authenticity of a self-identified transgender individual. A commenter stated that the rule puts “staff in the position of adjudicating who is a (transgender) woman and who is not,” and that this is unfair to such staff and the populations they serve. A commenter stated that biological sex is relevant to decisions about single-sex housing and shared sleeping and bathing areas. Another commenter said HUD conflates the definitions of “sex,” and “gender,” and suggested that HUD define “sex” as the actual biological maleness or femaleness of a person and “gender” as the cultural sex-role, although the commenter stated that even this revision is still problematic because there are no universally agreed upon attributes for what constitutes particular roles.

    Other commenters stated that sex is not “assigned” at birth, but is presented, observed, and recorded, and commenters recommended that the rule refer to the sex “presented” at birth rather than the sex “assigned” at birth. This commenter also supported the view that “perceived” gender identity is problematic, as perception varies from individual to individual, and asked how a provider is expected to perceive somebody else's identity. The commenter suggested that the rule state that perceived gender identity means the social sex-role the person is assumed to have an affinity for based on exhibited stereotyped behaviors commonly acknowledged to be associated with being either male or female and/or the actual biological sex of the person, but stated that there still needs to be some objective criteria for the definition to be of any real use, but using stereotyped behaviors in place of biological sex is problematic. A commenter said that the rule also does not define “transgender” or explain how a provider could distinguish between those who are sincere in their sex-role identity and those who are not. Further, the commenter said that because this rule enshrines expressions and characteristics as a legal sex category, it will negatively affect other laws concerning women's rights, and the definition of “woman” should be based on biological sex.

    HUD Response: HUD appreciates and has considered the suggested revisions to the definition of “gender identity” offered by commenters. However, HUD declines to make the suggested changes at this final rule stage. As HUD observed in the 2012 Equal Access Rule, the number of suggested revisions to the definition of “gender identity” highlights a range of differing views among commenters regarding the meaning of this term. Consequently, HUD was required to determine which definition makes the most sense in this context. As noted earlier in this preamble, in the 2012 Equal Access Rule, HUD based its definition on the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, on the basis that both this statute and HUD's policy sought to protect LGBT individuals. Subsequently, however, HUD evaluated its program recipient practices, reviewed research on discrimination of transgender individuals in shelter settings, solicited input on the experiences and concerns of both clients and providers, and reviewed its own guidance, as well as several other Federal agencies' gender-identity nondiscrimination policies. HUD found helpful, for instance, that the DOJ's guidance states that a program recipient “should ask a transgender beneficiary which group or service the beneficiary wishes to join,” but may not “ask questions about the beneficiary's anatomy or medical history or make burdensome demands for identity documents.” As noted in the proposed rule, HUD determined, in light of its review, that it would be more effective for the specific purpose of ensuring equal access to HUD programs to separate the definitions of actual and perceived gender identity and to require that any gender identity determinations in the context of CPD programs be based on an individual's self-identification. That does not mean that staff workers conducting intake procedures must account for perceived gender identity in determining placement. In fact, it means that staff workers must not use perceived gender identity and must only place an individual based on the individual's actual gender identity, without additional questions about anatomy, medical history, or identification documents. Transgender and gender nonconforming persons must not be placed based on perceived gender identity when it is in conflict with an individual's self-identified gender identity. This approach is consistent with current research, with HUD's existing guidance, and with other Federal agency policy. This approach does not require the provider to make any determination as to an individual's sincerity with respect to their gender.

    In response to the comment with regard to this rule's impact on a “legal sex category,” this rule does not provide a definition of “woman” or “sex.” In this rule, HUD notes that gender identity—and whether a person identifies with their sex assigned at birth or not—is a component of sex. As such, HUD believes it was important to recognize the role of gender identity in its 2012 Equal Access Rule and to provide further guidance on how individuals are treated based on gender identity in this rule. In view of its role in ensuring access to housing for all Americans, HUD could not countenance denying equal access to shelter on the basis of gender identity, just as it could not countenance such treatment for characteristics such as race, color, national origin, or disability. As previously noted, HUD does not believe it is appropriate to isolate, ostracize, or treat people differently because of the way others, such as other shelter residents or shelter employees, view them.

    Given the comments requesting guidance on the efforts a provider may use to identify an individual's gender identity, HUD revised the proposed rule, in this final rule, to provide clarity on this point. Specifically, HUD has included a provision in § 5.106(b) that makes clear that individuals may not be asked to answer intrusive questions, provide anatomical information, or provide documentary, physical, or medical evidence of the individual's gender identity. HUD notes that documents such as identification documents may list an individual's sex assigned at birth and not an individual's gender identity. Thus, an identification card or other document is not dispositive of an individual's gender identity. By including language that prohibits intrusive questioning or requests for anatomical information, documentation, or physical or medical evidence, HUD makes clear to providers, owners, operators, and managers that an individual's self-identification of gender identity is sufficient evidence of the individual's gender identity for purposes of making a decision regarding admission, placement, accommodation, placement, or services under this final rule. While documentation of gender identity may not be required for purposes of establishing an individual's gender identity or determining eligibility for a program, HUD recognizes that an individual may need to provide documentation of identity in order to apply for certain types of assistance, such as healthcare, Social Security benefits, or employment. In instances where the provider receives documentation and that documentation states a different gender marker than was identified by the individual as their gender identity, the provider must continue to serve the individual in accordance with their self-identified gender identity.

    As previously stated, it is not uncommon for transgender persons to have identification documents that indicate the individual's sex assigned at birth instead of the individual's gender identity, so identity documents should not be viewed as evidence contesting an individual's self-identification of gender identity.

    Comment: A commenter stated that the rule recognizes that some people do not identify as either male or female and that such persons must be permitted to choose which option is most consistent with their gender when accessing single-sex shelters or other buildings or facilities or services. Commenters asked HUD to clarify how the rule applies to people who identify in nonbinary, gender-fluid, intersex, or gender nonconforming terms. Commenters stated that nonbinary individuals constitute a vulnerable subgroup within the transgender population, particularly because their identity may be less familiar to program staff, but they are nevertheless entitled to the same acceptance and respect for their gender identities as are others. A commenter said the medical community has widely recognized the importance of recognizing gender identities other than male or female, or nonbinary genders, and providing those with nonbinary genders equal access to services. Commenters stated that an individual whose gender identity is neither male nor female should have the right to state which program or facility is most consistent with their identity and asked HUD to include language to this effect in the preamble to the final rule. The commenters also asked HUD to discuss in its training and technical assistance for grantees the rule's application to persons who are gender nonconforming or who do not identify as male or female, in training and technical assistance for grantees. Commenters stated that the rule should expressly state that refusing service or access to individuals who are gender nonconforming or who do not identify as either male or female violates the proposed rule. Commenters stated that when only male or female accommodations are available, equal access requires that persons who do not identify as either male or female must be permitted to determine which option is most consistent with their gender identity. A commenter stated that HUD should amend its forms and databases to permit individuals to identify as something other than male or female and to instruct program staff that individuals must be permitted to self-identify their own gender. Another commenter said that the rule does not mention intersex persons or persons with a difference of sexual development (DSD) and, consistent with current trends in case law, coverage of the rule should be expanded to include persons with intersex conditions and DSD.

    Another commenter said that while it understands that the proposed regulations are requiring nonbinary users to choose between facilities for the two majority genders, the commenter believes that, over the long term, single-sex systems are going to have to become integrated if they are to cost-effectively serve an expanding variety of gender identities. This commenter asked HUD to start conceptualizing a new system that can comfortably accommodate nonbinary users. A commenter said HUD should encourage recipients to undertake the following: The development and creation of all-gender spaces; the creation of policies, practices, and staffing structures that would allow programs and facilities to be safely designated as all-gender; and the creation of practices and facility upgrades that afford all residents increased personal privacy.

    HUD Response: HUD appreciates the comments regarding individuals who do not identify as either male or female and individuals who are nonbinary, gender-fluid, intersex, or gender nonconforming. While HUD did not reference each of these groups in its proposed rule or the regulatory text of this final rule, HUD's use of terminology is not intended to exclude people because of the words they use to describe themselves. HUD recognizes that there is more work to do in this area to ensure that, to the greatest extent possible, all individuals are treated equally and appropriately accommodated in HUD-funded programs, shelters, services, and other facilities. In circumstances where an individual does not identify as male or female and such information is relevant to placement and accommodation, the individual should be asked the gender with which the individual most closely identifies. In these circumstances, the individual is in the best position to specify the more appropriate gender-based placement as well as the placement that is most likely to be the safest for the individual—either placement with males or placement with females.

    While HUD appreciates the suggestions about future actions it may take to better accommodate everyone in shelters, HUD declines to address these comments in detail as these issues are beyond the scope of this rulemaking. HUD will consider these issues for future rulemaking. As the commenters suggest, HUD will also consider training and guidance for shelter providers, operators, and managers on best practices for dealing with individuals who do not identify as male or female and individuals who are nonbinary, intersex, or gender nonconforming. HUD agrees that individuals in these groups may be particularly vulnerable, and that training and technical assistance may be helpful in addressing the needs of these populations of shelter residents.

    Comment: A commenter stated that HUD should not follow the approach taken by DOJ in implementation of the Prison Rape Elimination Act because DOJ regulations included provisions allowing correctional agencies broad discretion to make “case-by-case” decisions regarding whether placement in a male or female facility would ensure the individual's health and safety. The commenter stated that while DOJ explained in its rule's preamble that “an agency may not simply assign the inmate to a facility based on genital status,” few, if any, State agencies are complying with this provision, with the result that agencies are maintaining their prior practices of automatically placing individuals exclusively based on their genital anatomy, even when nominally adopting policy language that mirrors the Federal rule. The commenter stated that such discretion is not appropriate or permissible under regulations implementing Federal nondiscrimination requirements. Another commenter stated that the most essential element of a successful nondiscrimination policy is the basic rule that housing must be based on a person's self-identified gender, not on their sex assigned at birth. A commenter stated that placement should not be conditioned on whether a transgender person has undergone any medical treatment or been able to change the gender markers on their identification documents, or have to look a certain way. Another commenter stated, citing several examples in the United States and elsewhere, that shelters that have adopted a rule basing gender on self-identification, as opposed to sex assigned at birth, report uniform success in being able to serve and integrate transgender people into their programs and services.

    HUD Response: HUD has never intended to give broad discretion to recipients and providers to make case-by-case decisions. The proposed rule required providers of temporary, emergency shelter and services to document the specific facts, circumstances, and reasoning relied upon in any case-by-case determination that results in an alternative admission, accommodation, benefit, or service to an individual or their family.

    To clarify that placement is to be made on the basis of an individual's self-identification of gender, § 5.106(b) of this final rule includes a provision stating that individuals may not be subjected to intrusive questioning relating to their gender identity or asked to provide anatomical information, documentation, or physical or medical evidence of gender identity. Therefore, this final rule makes clear that placement in accordance with an individual's gender identity cannot be conditioned on whether a transgender person has undergone medical treatment, has been able to change identification documents to reflect their gender identity, or has a certain appearance or gender expression.

    Additionally, as discussed earlier in this preamble, in § 5.106(c) of this final rule, which addresses placement and accommodation in temporary, emergency shelters and other facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities, HUD removes the proposed rule language that, under narrow circumstances, a written case-by-case determination could be made on whether an alternative accommodation for a transgender individual would be necessary to ensure health and safety. In its place, HUD provides that placement and accommodation of individuals in shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities shall be made in accordance with an individual's gender identity. Further, this revised paragraph (c) provides for post-admission accommodations, where, after an individual has been admitted to a shelter or other building and facilities, providers must take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants. This provision for post-admission accommodations applies to all individuals, regardless of gender identity.

    Comment: In contrast to the preceding comment, commenters stated that the requirements that an accommodation be permitted only in “narrow” or “rare” circumstances, and then only when “necessary” to ensure two specified interests—health and safety— is too circumscribed to adequately protect the interests of all residents. The commenter stated that an accommodation that furthers the interests in protecting the health and safety of residents should be allowed, for example, even if not, strictly speaking, “necessary,” and not only at the request of the person “claiming” to be transgender. Commenters stated that, even as to housing facilities that admit both men and women, residents should not be required to share with persons of the opposite sex those areas, such as sleeping and bathing areas, properly reserved to persons of one sex, for reasons of privacy.

    HUD Response: As discussed above, this final rule notes that providers need to take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants. HUD stresses the use of the term “nondiscriminatory” in this provision. An example of a nondiscriminatory step to address privacy concerns would be accommodating a request of a domestic violence victim who has specific privacy concerns to bathe at specific, separate times from other shelter or facility occupants.

    As HUD has noted, it has studied the issue for 4 years and determined, following the lead of other Federal agencies, that to ensure equal access, the general rule must be that individuals are accommodated in accordance with their gender identity. If HUD were to provide broader discretion, placement decisions would rely on more subjective factors that might differ from provider to provider based on the views, beliefs, and unsubstantiated fears of individual shelter staff.

    Comment: A commenter said the rule prohibits a determination from being based on complaints of other shelter residents when those complaints are based on actual or perceived gender identity, but HUD should provide guidelines to help providers distinguish complaints that are based on recognition of threat because of a client's biological sex, as opposed to “gender identity.”

    HUD Response: HUD agrees that the language referenced by the commenter could cause confusion. HUD, therefore, has removed the language and makes clear that in temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities, placements and accommodations shall be made in accordance with an individual's gender identity. Once an individual is accommodated, providers shall take appropriate steps to address privacy concerns raised by all residents and occupants. By considering complaints, and taking appropriate action in response, a provider will minimize the risk of harassment occurring among occupants and between staff and occupants.23 Such actions must, however, be nondiscriminatory.

    23 Unlawful harassment in shelters that qualify as dwellings violates the Fair Housing Act. See Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, proposed rule, 80 FR 63720 (Oct. 21, 2015).

    Comment: Commenters stated that the rule should clarify that shelters may give transgender people case-by-case alternative or modified accommodations only when they request them and not at the mandate of shelter staff and/or to accommodate the wishes, fears, or discomfort of others—and that such alternatives or modifications shall not be based on a person's actual or perceived gender identity. Commenters also stated that the rule should clarify that shelters shall provide accommodations requested by a transgender shelter-seeker, and only when those accommodations are reasonable and appropriate to protect the health, safety or privacy of that individual. Commenters stated that a person's ability to request an alternative or modified placement should not be limited to “shared sleeping quarters or shared bathing facilities” and recommended that the provision for such accommodations be incorporated into paragraph (b) of § 5.106 (which is titled Equal Access in accordance with gender identity) rather than in separate paragraph (d) of § 5.106 (which is titled Referrals). A commenter said that many shelters find that, where possible, providing increased privacy for all residents is ideal; for example, private rooms and bathrooms and showers with locks. A commenter stated that the rule should mandate that shelters provide unisex bathrooms with individual showers.

    Commenters stated that the rule should clarify that any alternative or modified placements must provide access to the same or substantially equivalent services, or a “comparable alternative program.” Commenters stated that HUD should clarify that shelters will be in noncompliance with the rule if they provide some services (e.g., hotel vouchers) but otherwise deny equivalent services, such as the same length of stay, other supportive services offered by the shelter, or services provided at the primary program site due to a lack of transportation. A commenter stated that a provider that refers an individual to another program should be required to confirm that the individual received shelter or services at that alternative program.

    HUD Response: As previously discussed, this final rule removes the case-by-case determination language in the proposed rule and establishes that individuals in HUD-funded shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities must be accommodated in accordance with their gender identity. This final rule makes clear that providers do not have the discretion to suggest that individuals may not be accommodated in shelters that match their gender identity because their gender identity differs from their sex assigned at birth. As a result, HUD has eliminated the referral provision that was in § 5.106 (d) of the proposed rule. Section 5.106(b) of this final rule broadly discusses how policies and procedures must ensure equal access to CPD programs based on gender identity.

    As discussed earlier in this preamble, the revisions to this final rule do not preclude the existing possibility that any occupant may request a referral to an alternate project or that, in such cases, staff may provide a referral to another project or, where none is available and funding permits, offer clients a hotel or motel voucher. HUD appreciates the commenters' concerns that a transgender individual who is provided an alternative accommodation at the individual's request should be provided an accommodation that is comparable to the shelter within which the individual originally sought accommodation and agrees that when providers make referrals they should ensure that an opportunity to access equivalent alternative accommodations, benefits, and services is provided, or the requestor should receive a referral to a comparable alternative program with availability and equivalent accommodations, benefits, and services.

    HUD is encouraged that many shelters are providing increased privacy for all residents, such as private rooms and bathrooms and showers with locks, and as discussed earlier in this preamble, HUD encourages this where feasible. This rule, however, does not mandate this configuration. Mandatory configuration of shelters is beyond the scope of this rulemaking.

    Comment: Other commenters stated that they oppose any exception to the requirement that shelter be provided based on gender identity to protect the health and safety of shelter employees or other people staying in the shelter, because such an exception is not necessary and will be used as pretext to deny shelter to transgender individuals. Commenters stated that under the proposed rule language, it is not clear whose health and safety the exception is intended to protect. A commenter stated that the very allowance of an exception reinforces the attitude that a person is a threat to others based solely on her or his status as a transgender individual. The commenter stated that if a shelter provider is concerned that a transgender individual's behavior or conduct poses a threat to others' health or safety, then the provider can and should address that in the same way that it addresses the problematic conduct of any other person staying in the shelter.

    Another commenter stated that the exception, which is ambiguous, should be removed, because it is unclear from the preamble what kind of “health and safety” circumstances would (or should) ever justify denying shelter to a transgender individual in accordance with their gender identity. A commenter stated that the exception should apply only to the health and safety of the shelter seeker, meaning that only shelter seekers could make these requests for other accommodations for themselves. Other commenters stated that HUD should take special care to ensure that providers are not choosing these alternatives in order to circumvent the general prohibition on discrimination. A commenter stated that it would be very helpful for HUD to provide guidance in the form of specific examples of effective policy adjustments, as well as other ways shelter and housing providers can mitigate actual or perceived threats to health or safety, in a less burdensome way. A commenter stated that guidance is needed to address what covered providers should do in scenarios where they lack financial resources to provide alternative accommodations or referrals, so as not to violate the rule.

    HUD Response: HUD appreciates these comments and, as discussed previously, HUD has revised the rule to clarify that placement and accommodation must be made in accordance with an individual's gender identity.

    Comment: A commenter stated that the goals of this rule could conflict with the goals of “Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs,” a rule that seeks to offer expanded protections to victims of domestic violence, dating violence, sexual assault, and stalking within HUD-assisted and HUD-insured housing. The commenter suggested that HUD provide additional guidance to operating facilities with shared sleeping quarters on how to offer alternative accommodations to transgender individuals when there are residents that are sensitive to sharing facilities with the opposite sex due to their experiences with domestic violence.

    HUD Response: HUD's proposed rule implementing the housing protections of VAWA, which as the commenter noted would expand protections to victims of domestic violence, dating violence, sexual assault, and stalking in HUD-assisted and HUD-insured housing, does not conflict with this final rule. HUD's proposed rule on VAWA would implement statutory requirements that: (1) Prohibit housing providers under certain HUD programs (covered housing providers) from denying or terminating assistance or occupancy rights to individuals because they are or have been victims of domestic violence, dating violence, sexual assault, or stalking; (2) require covered housing providers to notify tenants and applicants of their rights under VAWA, and detail what documentation covered housing providers may ask for; (3) require covered housing providers to create emergency transfer plans; and (4) provide for lease bifurcations. Nothing in HUD's rule proposing to implement VAWA contradicts this rulemaking requiring that individuals be housed and receive services in accordance with their gender identity.

    Further, as HUD explained in the CPD Equal Access proposed rule, VAWA imposed a new grant condition that prohibits discrimination by recipients of grants administered by DOJ, including grants to provide housing assistance for survivors of domestic violence. Although this provision relates to DOJ, and not to HUD, HUD noted that on April 9, 2014, DOJ's published guidance entitled “Frequently Asked Questions: Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013,” which addresses how a recipient of DOJ funds can operate a single-sex facility funded through VAWA and not discriminate on the basis of gender identity. The DOJ guidance states that recipients that operate sex-segregated or sex-specific programs should assign a beneficiary to the group or service that corresponds to the gender with which the beneficiary identifies, and may consider on a case-by-case basis whether a particular housing assignment would ensure the victim's health and safety, but recipients may not make a determination about services for one beneficiary based on the complaints of another beneficiary when those complaints are based on gender identity. The guidance further states that, for the purpose of assigning a beneficiary to sex-segregated or sex-specific services, best practices dictate that the recipient should ask a transgender beneficiary which group or service the beneficiary wishes to join, but the recipient may not ask questions about the beneficiary's anatomy or medical history or make burdensome demands for identity documents.

    HUD's rule requires that individuals be accommodated in accordance with their gender identity. It is beyond the scope of this rule to detail methods for best serving victims of domestic violence, dating violence, sexual assault, or stalking. However, as discussed earlier, this final rule requires that providers must take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by all residents or occupants. HUD notes that both victims and perpetrators of domestic violence and other VAWA crimes include persons who are transgender or gender nonconforming individuals and persons who are not.

    Comment: Commenters asked that HUD include other CPD programs that will be active in the near future, including the Housing Trust Fund and the Rural Housing Stability Assistance program, or provide an indicator that the list is nonexhaustive so the Secretary can add more CPD programs.

    HUD Response: HUD's intent was to cover all CPD programs, as noted in the preamble to the proposed rule. Therefore, HUD makes clear in § 5.106(a) that additional CPD programs, such as the Housing Trust Fund and Rural Housing Stability Assistance programs, are included.

    Comment: Commenters stated that the rule should clarify that transgender persons have a right to housing and treatment consistent with their gender identity in all circumstances—in the preamble and training and technical assistance. Other commenters said it is essential that the rule address more directly the problem of violence, including the high rates of sexual assault, against LGBT and gender nonconforming persons in federally funded shelters.

    HUD Response: HUD's 2012 Equal Access Rule and this CPD Equal Access Rule explicitly acknowledge the higher rate of discrimination and acts of violence experienced by transgender persons and both rules address the issue that transgender individuals and other gender nonconforming persons must be able to participate in HUD programs on an equal basis as all other program participants. HUD guidance and training on its Equal Access rules cover these subjects.

    Comment: The rule must address public and staff perceptions.

    HUD Response: The final rule makes clear that transgender and other gender nonconforming individuals are to be admitted, placed, accommodated, and provided with services in accordance with their gender identity. Public and staff perceptions are not an appropriate basis for denial or limitation of access. Any additional rulemaking to address public and staff perceptions of transgender and gender nonconforming persons is beyond the scope of this rulemaking. HUD acknowledges, however, that such topics may be appropriate for training and technical assistance materials for shelter providers.

    Comment: Commenters stated that HUD-funded programs should be required to create and implement written policies specifying how they will combat harassment, violence, and sexual assault and, in particular, how they will protect the health and safety of LGBT and gender nonconforming persons and others who are at increased risk of sexual violence. A commenter recommended that HUD require its recipients and subrecipients to create written policy and guidelines combating violence against persons marginalized due to their sexual orientation or gender identity and to require data collection to help monitor accountability. Commenters stated that HUD should provide guidance detailing necessary provisions of such policies and recommended best practices, for example, guidance or best practices pertaining to the shelter-seeker's own individualized safety assessment, through training and technical assistance for grantees. Commenters also stated that HUD should specify that the failure to create and implement such policies could result in noncompliance with the regulations and, thereby, jeopardize Federal funding and/or result in HUD taking action under its regulations. Another commenter stated that it is unclear who has the responsibility to establish and amend policies and procedures under the rule, so HUD should clarify that the covered recipients, subrecipients, owners, operators, managers, and providers must create, implement, and revise these policies and procedures as necessary. The commenter stated that HUD should identify in a subsequent notice the specific types of individuals and entities that have these duties within each housing program. The commenter also stated that HUD should provide sample policies and procedures, especially regarding privacy and security, so that covered individuals or entities that are unfamiliar with gender identity issues can have access to models in devising their own policies and procedures.

    Commenters stated that the rule should mandate training for shelter staff as a prerequisite to receiving HUD funding. Another commenter stated that guidance from advocacy organizations suggests that ongoing resident training should be implemented in addition to current HUD-required staff training. A commenter stated that HUD should ensure that community organizations are made aware of the rule, once the rule is implemented, in order to better support their outreach work to transgender and gender nonconforming people in poverty.

    Other commenters asked HUD to provide training on the requirement that recipients and subrecipients must treat transgender individuals respectfully by using an individual's self-identified name and pronouns, regardless of whether they have been able to legally change it.

    HUD Response: HUD agrees with the commenters that successful implementation of this rule depends in no small part on guidance and training. HUD undertook intensive training efforts following publication of its 2012 Equal Access Rule and 2015 Notice CPD-15-02, and HUD intends to do the same for this CPD Equal Access Rule. With respect to commenters' questions about the establishment of policies, § 5.106(b) of this final rule (and of the proposed rule) requires that the admissions, occupancy, and operating policies and procedures of recipients, subrecipients, owners, operators, managers, and providers (covered by this rule), including policies and procedures to protect privacy, health, safety, and security, shall be established or amended, as necessary, and administered in a nondiscriminatory manner so: (1) Equal access to programs, shelters and other buildings and facilities, benefits, services, and accommodations is provided to an individual in accordance with the individual's gender identity, and in a manner that affords equal access to the individual's family; (2) an individual is placed, served, and accommodated in accordance with the individual's gender identity; (3) an individual is not subjected to intrusive questioning or asked to provide anatomical information or documentary, physical, or medical evidence of the individual's gender identity; and (4) consistent with § 5.105(a)(2),eligibility determinations are made and assisted housing is made available in CPD programs without regard to actual or perceived gender identity.

    Comment: A commenter stated that the rule's case-by-case analysis, training, and referral requirements will involve more time and resources than HUD estimates. The commenter stated that HUD should provide additional resources and tools to program grantees so that proper training can be conducted, particularly for small grantees with limited resources.

    HUD Response: As discussed earlier, this final rule eliminates the provision regarding a case-by-case analysis. As HUD noted in response to the preceding comment, HUD will undertake training and provide training and guidance to assist recipients and subrecipients under the CPD programs covered by this rule.

    Comment: Commenters stated that they support the elimination of the inquiries prohibition provision for the following reasons: (1) The prohibition would likely cause confusion in the context of applying § 5.106, as it may be construed to prohibit any discussion of gender identity and (2) it appears to prohibit the routine and voluntary collection of demographic data regarding sexual orientation and gender identity for purposes of program evaluation—and, while an inquiry regarding sexual orientation or gender identity may constitute discrimination or be evidence of discrimination under the rule, inquiries for legitimate and nondiscriminatory purposes should be permitted. Commenters stated that they supported the removal of the prohibition to the extent that the final rule is clear that shelter and housing providers can only inquire about an applicant's or resident's sexual orientation and gender identity for lawful purposes; for example, to determine unit size and as part of the routine and voluntary collection of demographic data concerning sexual orientation and gender identity for program evaluation, so long as the data is collected and used for nondiscriminatory purposes in a nondiscriminatory fashion. A commenter stated, in support of removing the prohibition, and providing suggested language, that they urged HUD to require that specific protocols be put in place to protect the confidentiality of information about sexual orientation or transgender status.

    HUD Response: HUD is committed to ensuring the safety and privacy of all individuals, including transgender and gender nonconforming individuals, in CPD programs. In the proposed rule, HUD expressed its intent in proposing the removal of the inquiries prohibition. HUD emphasized that it would only permit recipients or subrecipients to inquire about a person's sexual orientation or gender identity for lawful, nondiscriminatory purposes. In the final rule, to prohibit inappropriate inquiries related to gender identity, HUD included language in § 5.106(b) stating that it would be inappropriate to subject individuals to intrusive questioning or ask them to provide anatomical information or documentary, physical, or medical evidence of the individual's gender identity. In addition, as noted previously in this preamble, CPD previously issued guidance, “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities” (Notice CPD-15-02, Feb. 20, 2015), which outlines best practices for appropriate and inappropriate inquiries related to sex and provides guidance, and recommends staff training, on addressing safety or privacy concerns. HUD intends to issue further guidance in connection with the issuance of this final rule.

    Comment: A commenter stated, citing recommended guidance and model policies, that Massachusetts prohibits gender-based inquiries only in cases where shelter guests are perceived as transgender, suggesting that implementation of the proposed rule would be possible without removing the prohibition.

    HUD Response: As noted in HUD's proposed rule, removal of the inquiries prohibition would allow temporary, emergency shelters and other facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities to ask the individual's gender identity, and it would permit inquiries of the individual's gender identity and sexual orientation to determine the number of bedrooms to which a household is entitled. This is an inquiry that could be asked of all individuals, and not solely of those who are perceived to be transgender. Further, as HUD has stated, removal of the inquiries prohibition also reaffirms that HUD permits mechanisms for voluntary and anonymous reporting of sexual orientation or gender identity for compliance with data collection requirements of State and local governments or Federal assistance programs.

    Comment: Commenters stated that the rule should expressly prohibit program staff from asking individuals questions about their anatomy, medical procedures, or medical history or making requests for identity documents or other documentation of gender as a precondition for being housed consistent with their gender identity,

    HUD Response: Although the final rule removes the provision of § 5.105 that prohibited inquiries into an individual's sexual orientation or gender identity for purposes of facilitating providers' compliance with the requirement of § 5.106 that an individual is to be admitted, placed, accommodated, and provided services in accordance with the individual's gender identity, HUD agrees with commenters that transgender and gender nonconforming individuals should not be required to answer invasive questions about their anatomy or medical history in order to be accommodated and provided services in CPD programs. To address this concern, HUD has revised § 5.106(b) to prohibit intrusive questions related to gender identity and prohibit requests for anatomical information and requests for documentary, physical, or medical evidence.

    Comment: Commenters recommend that HUD emphasize in the preamble, and in training and technical assistance, the importance of protecting the privacy of information related to a shelter seeker's sexual orientation and gender identity. A commenter stated that transgender people in particular face serious risks of danger, including verbal harassment and physical assault, when their transgender status or gender identity is revealed without their consent. The commenter said that steps to keep a shelter seeker's sexual orientation and/or gender identity confidential include, without limitation: (1) Safeguarding all documents and electronic files, (2) containing this information and having conversations about these topics in private to prevent disclosure, (3) establishing explicit nondiscrimination provisions, (4) ensuring safe environments in programs and shelters, (5) implementing rigorous confidentiality safeguards, and (6) ensuring that shelter staff members receive appropriate training. The commenter said that successful implementation of these important requirements will facilitate the collection of much needed data, allowing HUD to better determine the populations its programs serve, their needs and consumer experiences, and their use of programs and facilities.

    HUD Response: Many of CPD's programs that govern temporary, emergency shelters and other buildings and facilities impose strict confidentiality requirements to ensure the privacy of individuals that are housed in these facilities. (See §§ 574.440, 576.500(x), 578.103(b) and (d)(2), and 578.23(c)(4)(i).) This final rule requires that privacy be considered in adopting admissions, occupancy, and operating policies and procedures in § 5.106(b) and provides that shelters and other buildings and facilities take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants in § 5.106(c). Further guidance will address privacy and confidentiality in data collection.

    Comment: Commenters stated that HUD should clarify in the preamble to the final rule, and in training and technical assistance to its field staff, that inquiries that are used to limit the provision of shelters or housing, to harass an individual, or to further any other discriminatory purpose fall under the prohibition on discrimination. Commenters stated that, by contrast, HUD should state clearly in those areas that the routine and voluntary collection of demographic information from all clients or program participants is permissible, so long as it is collected and used in a nondiscriminatory fashion.

    HUD Response: HUD appreciates the commenters raising this issue and will address this issue in guidance. HUD reiterates that conduct that violates the rule may also violate the Fair Housing Act if the facility is subject to the Fair Housing Act's nondiscrimination requirements and the conduct is because of race, color, religion, national origin, familial status, sex, or disability.

    IV. Findings and Certifications Regulatory Review—Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made on whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. A determination was made that this final rule is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 (although not economically significant, as provided in section 3(f)(1) of that order).

    This final rule is consistent with Administration policy in its direction that providers in all CPD programs must ensure that their policies and procedures to protect privacy, health, safety, and security are administered so that equal access is provided to HUD programs in accordance with an individual's gender identity. This final rule also clarifies how temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities comply with the requirement that equal access be provided to programs, buildings, facilities, services, benefits, and accommodations in accordance with an individual's gender identity. This clarification will benefit clients accessing CPD-funded programs, including those with temporary, emergency shelters and other buildings and facilities, by assuring that all clients receive equal access and will benefit the CPD-funded facilities by making compliance with HUD's equal access requirements easier.

    These requirements benefit all occupants by ensuring that providers understand that they need to be responsive to individual health, safety, security, and privacy concerns, while ensuring that they do not take any discriminatory steps to address these concerns. This final rule also amends the definition of gender identity and sexual orientation in § 5.100 to clarify the difference between actual and perceived gender identity, which is necessary to the adoption of § 5.106, and to reflect recent changes in the definition of sexual orientation that uses updated terminology but does not expand the coverage of the term. This final rule eliminates the prohibition on inquiries relating to sexual orientation or gender identity in § 5.105(a)(2)(ii). Both of these changes make it easier for recipients and subrecipients of CPD funding, as well as owners, operators, and managers of shelters, buildings, and other facilities, and providers of services funded by CPD programs to comply with the requirements of both §§ 5.105(a)(2)(i) and 5.106.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Approximately 4,000 providers participating in the CPD programs covered by this rule are small organizations, but the rules requirement that organizations maintain records will be limited. Organizations are already required to maintain up-to-date policies and procedures in accordance with HUD guidance and regulations. The only change is that all CPD programs must now maintain records of prior policies and procedures for up to 5 years from when they make changes to comply with these requirements. HUD believes that these limited recordkeeping requirements on small organizations are reasonable to ensure equal access to CPD programs, facilities, services, benefits, and accommodations in accordance with an individual's gender identity. Accordingly, for the foregoing reasons, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number. The information collection requirements for the CPD programs impacted by this rule—HOME, CDBG (State and entitlement), HOPWA, ESG, and CoC—have been approved by OMB and assigned OMB control numbers 2506-0171, 2506-0085, 2506-0077, 2506-0133, 2506-0089, and 2506-0199. The information collection requirements for CPD's Housing Trust Fund and Rural Housing Stability Assistance programs will be included when those programs are implemented.

    Environmental Impact

    This rule sets forth nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

    Executive Order 13132, Federalism

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

    Unfunded Mandates Reform Act

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

    List of Subjects in 24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Drug abuse, Drug traffic control, Grant programs—housing and community development, Grant programs—Indians, Individuals with disabilities, Loan programs—housing and community development, Low and moderate income housing, Mortgage insurance, Pets, Public housing, Rent subsidies, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, and in accordance with HUD's authority in 42 U.S.C. 3535(d), HUD amends 24 CFR part 5 as follows.

    PART 5—GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS 1. The authority citation for part 5 continues to read as follows: Authority:

    42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d), Sec. 327, Pub. L. 109-115, 119 Stat. 2936, and Sec. 607, Pub. L. 109-162, 119 Stat. 3051.

    2. In § 5.100, revise the definitions for “Gender identity” and “Sexual orientation” to read as follows:
    § 5.100 Definitions.

    Gender identity means the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person's perceived gender identity. Perceived gender identity means the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender related characteristics, or sex assigned to the individual at birth or identified in documents.

    Sexual orientation means one's emotional or physical attraction to the same and/or opposite sex (e.g., homosexuality, heterosexuality, or bisexuality).

    § 5.105 [Amended]
    3. In § 5.105, remove paragraph (a)(2)(ii) and the paragraph (a)(2)(i) heading and redesignate paragraph (a)(2)(i) as (a)(2). 4. Add § 5.106 to read as follows:
    § 5.106 Equal access in accordance with the individual's gender identity in community planning and development programs.

    (a) Applicability. This section applies to assistance provided under Community Planning and Development (CPD) programs, including assistance under the following CPD programs: HOME Investment Partnerships program (24 CFR part 92), Housing Trust Fund program (24 CFR part 93), Community Development Block Grant program (24 CFR part 570), Housing Opportunities for Persons With AIDS program (24 CFR part 574), Emergency Solutions Grants program (24 CFR part 576), Continuum of Care program (24 CFR part 578), or Rural Housing Stability Assistance Program (24 CFR part 579). The requirements of this section apply to recipients and subrecipients, as well as to owners, operators, and managers of shelters and other buildings and facilities and providers of services funded in whole or in part by any CPD program.

    (b) Equal access in accordance with gender identity. The admissions, occupancy, and operating policies and procedures of recipients, subrecipients, owners, operators, managers, and providers identified in paragraph (a) of this section, including policies and procedures to protect privacy, health, safety, and security, shall be established or amended, as necessary, and administered in a nondiscriminatory manner to ensure that:

    (1) Equal access to CPD programs, shelters, other buildings and facilities, benefits, services, and accommodations is provided to an individual in accordance with the individual's gender identity, and in a manner that affords equal access to the individual's family;

    (2) An individual is placed, served, and accommodated in accordance with the gender identity of the individual;

    (3) An individual is not subjected to intrusive questioning or asked to provide anatomical information or documentary, physical, or medical evidence of the individual's gender identity; and

    (4) Eligibility determinations are made and assisted housing is made available in CPD programs as required by § 5.105(a)(2).

    (c) Placement and accommodation in temporary, emergency shelters and other buildings and facilities with shared sleeping quarters or shared bathing facilities—(1) Placement and accommodation. Placement and accommodation of an individual in temporary, emergency shelters and other buildings and facilities with physical limitations or configurations that require and are permitted to have shared sleeping quarters or shared bathing facilities shall be made in accordance with the individual's gender identity.

    (2) Post-admission accommodations. A recipient, subrecipient, owner, operator, manager, or provider must take nondiscriminatory steps that may be necessary and appropriate to address privacy concerns raised by residents or occupants and, as needed, update its admissions, occupancy, and operating policies and procedures in accordance with paragraph (b) of this section.

    (d) Documentation and record retention. Providers shall document and maintain records of compliance with the requirements in paragraph (b) of this section for a period of 5 years.

    Dated: September 14, 2016. Julián Castro, Secretary.
    [FR Doc. 2016-22589 Filed 9-20-16; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XE880 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2016 total allowable catch of yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.

    DATES:

    Effective September 21, 2016 through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,832 metric tons (mt), 5,460 mt, and 16,473 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 63716, September 16, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,257 mt, 11,778 mt, and 6,179 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 63716, September 16, 2016).

    The Coastal Villages Regional Fund has requested that NMFS exchange 215 mt of flathead sole and 245 mt of rock sole CDQ reserves for 460 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 215 mt of flathead sole, 245 mt of rock sole CDQ reserves for 460 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 63716, September 16, 2016), are revised as follows:

    Table 11—Final 2016 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole Tacs [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • aleutian
  • district
  • Central
  • aleutian
  • district
  • Western
  • aleutian
  • district
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 7,900 7,000 9,000 16,470 55,180 150,450 CDQ 845 749 963 1,617 5,215 16,933 ICA 200 75 10 5,000 6,000 3,500 BSAI trawl limited access 685 618 161 0 0 14,979 Amendment 80 6,169 5,558 7,866 9,853 43,965 115,038 Alaska Groundfish Cooperative 3,271 2,947 4,171 1,411 11,129 43,748 Alaska Seafood Cooperative 2,898 2,611 3,695 8,442 32,836 71,290 Note: Sector apportionments may not total precisely due to rounding.
    Table 13—Final 2016 and 2017 ABC Surplus, Community Development Quota (CDQ) ABC Reserves, and Amendment 80 ABC Reserves in the BSAI for Flathead Sole, Rock Sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2016
  • Flathead sole
  • 2016
  • Rock sole
  • 2016
  • Yellowfin sole
  • 2017
  • Flathead sole
  • 2017
  • Rock sole
  • 2017
  • Yellowfin sole
  • ABC 66,250 161,100 211,700 64,580 145,000 203,500 TAC 16,470 55,180 150,450 21,000 57,100 144,000 ABC surplus 49,780 105,920 61,250 43,580 87,900 59,500 ABC reserve 49,780 105,920 61,250 43,580 87,900 59,500 CDQ ABC reserve 5,472 12,023 5,719 4,663 9,405 6,367 Amendment 80 ABC reserve 44,308 93,897 55,531 38,917 78,495 53,134 Alaska Groundfish Cooperative for 2016 1 4,145 22,974 24,019 n/a n/a n/a Alaska Seafood Cooperative for 2016 1 40,163 70,923 31,512 n/a n/a n/a 1 The 2017 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2016.
    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Coastal Villages Regional Fund in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 8, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 16, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-22694 Filed 9-20-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE894 Fisheries of the Exclusive Economic Zone Off Alaska; Shortraker Rockfish in the Western Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting retention of shortraker rockfish in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2016 total allowable catch of shortraker rockfish in the Western Regulatory Area of the GOA will be reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), September 19, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 total allowable catch (TAC) of shortraker rockfish in the Western Regulatory Area of the GOA is 38 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

    In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of shortraker rockfish in the Western Regulatory Area of the GOA will be reached. Therefore, NMFS is requiring that shortraker rockfish in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of shortraker rockfish in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 15, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 16, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-22724 Filed 9-16-16; 4:15 pm] BILLING CODE 3510-22-P
    81 183 Wednesday, September 21, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 923 [Doc. No. AMS-SC-16-0077; SC16-923-1 PR] Cherries Grown in Designated Counties in Washington; Increased Assessment Rate AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Washington Cherry Marketing Committee (Committee) to increase the assessment rate established for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries handled. The Committee locally administers the marketing order and is comprised of growers and handlers of cherries operating within the production area. Assessments upon cherry handlers are used by the Committee to fund reasonable and necessary expenses of the marketing order. The fiscal period begins April 1 and ends March 31. The assessment rate would remain in effect indefinitely unless modified, suspended or terminated.

    DATES:

    Comments must be received by October 6, 2016.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. Comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposed rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Teresa Hutchinson or Gary D. Olson, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposed rule is issued under Marketing Order No. 923, as amended (7 CFR part 923), regulating the handling of cherries grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order now in effect, Washington cherry handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate, as proposed herein, would be applicable to all assessable Washington cherries beginning April 1, 2016, and continue until amended, suspended, or terminated.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposed rule would increase the assessment rate for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries.

    The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are growers and handlers of Washington cherries. They are familiar with the Committee's needs, and with the costs for goods and services in their local area, and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

    For the 2013-2014 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate of $0.15 per ton of Washington cherries that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

    The Committee met on May 18, 2016, and unanimously recommended expenditures of $57,150 for the 2016-2017 fiscal period. In comparison, the previous fiscal period's budgeted expenditures were $59,750. The Committee also unanimously recommended an assessment rate of $0.25 per ton of Washington cherries. The recommended assessment rate of $0.25 is $0.10 higher than the rate currently in effect.

    The expenditures recommended by the Committee for the 2016-2017 fiscal period include $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $5,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $3,000 for an audit; and $3,150 for miscellaneous other expenses. In comparison, expenditures for the 2015-2016 fiscal period were $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $7,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $4,000 for an audit; and $2,750 for miscellaneous other expenses.

    Committee members estimated the 2016 fresh cherry production to be approximately 150,000 tons, which would be less than the 2015 production of 165,358 tons by 15,358 tons. However, cherry production tends to fluctuate due to the effects of weather, pollination, and tree health. The Committee's recommended assessment rate was derived by dividing the 2016-2017 anticipated expenses by the expected shipments of Washington cherries, while also taking into account the Committee's monetary reserve. The recommended assessment rate of $0.25 per ton, when multiplied by the 150,000 tons of estimated 2016 Washington cherry shipments, is expected to generate $37,500 in handler assessments. The projected revenue from handler assessments, together with funds from the Committee's monetary reserve, would be adequate to cover the 2016-2017 budgeted expenses of $57,150. The Committee expects its monetary reserve to decrease from $49,661 at the beginning of the 2016-2017 fiscal period to approximately $30,011 at the end of the 2016-2017 fiscal period. That amount would be within the provisions of the order and would provide the Committee with greater ability to absorb fluctuations in assessment income and expenses into the future.

    The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

    Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of the Committee meetings are available from the Committee and USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2016-2017 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are 53 handlers of Washington sweet cherries subject to regulation under the order and approximately 1,500 growers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,500,000, and small agricultural growers are defined as those having annual receipts of less than $750,000.

    National Agricultural Statistics Service has prepared a preliminary report for the 2015 shipping season showing that prices for the 171,600 tons of sweet cherries that entered the fresh market averaged $2,380 per ton. Based on the number of growers in the production area (1,500), the average grower revenue from the sale of sweet cherries in 2015 can therefore be estimated at approximately $272,272 per year. In addition, the Committee reports that most of the industry's 53 handlers reported gross receipts of less than $7,500,000 from the sale of fresh sweet cherries last fiscal period. Thus, the majority of growers and handlers of Washington sweet cherries may be classified as small entities.

    This proposal would increase the assessment rate collected from handlers, for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries handled. The Committee unanimously recommended 2016-2017 expenditures of $57,150 and an assessment rate of $0.25 per ton. The proposed assessment rate of $0.25 is $0.10 higher than the rate established for the 2013-2014 fiscal period.

    The 2016-2017 Washington cherry crop is estimated at 150,000 tons. At the proposed $0.25 per ton assessment rate, the Committee anticipates that assessment income of approximately $37,500, along with reserve funds, would be adequate to cover budgeted expenses for the 2016-2017 fiscal period. With the proposed assessment rate and budgeted expense level, the Committee anticipates that $19,650 would need to be deducted from the monetary reserve. As such, reserve funds are estimated to be at $30,011 on March 31, 2017. That reserve level is within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 923.42(a)(2)).

    The expenditures recommended by the Committee for the 2016-2017 fiscal period include $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $5,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $3,000 for the audit; and $3,150 for miscellaneous other expenses.

    In comparison, expenditures for the 2015-2016 fiscal period were $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $7,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $4,000 for the audit; and $2,750 for miscellaneous other expenses.

    The Committee discussed alternatives to this action, including recommending alternative expenditure levels and assessment rates. Although lower assessment rates were considered, none were selected because they would not have generated sufficient income to administer the order.

    A review of historical data and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2016-2017 fiscal period could average $2,380 per ton of sweet cherries. Therefore, the estimated assessment revenue for the 2016-2017 fiscal period, as a percentage of total grower revenue, is approximately 0.01 percent.

    This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs would be offset by the benefits derived by the operation of the order.

    In addition, the Committee's meeting was widely publicized throughout the Washington cherry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 18, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Washington cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this action.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2016-2017 fiscal period began on April 1, 2016, and the order requires that the assessment rate for each fiscal period apply to all assessable Washington cherries handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; (3) handlers are already shipping Washington cherries from the 2016 crop; and (4) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

    List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 923 is proposed to be amended as follows:

    PART 923—CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON 1. The authority citation for 7 CFR part 923 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Section 923.236 is revised to read as follows:
    § 923.236 Assessment rate.

    On and after April 1, 2016, an assessment rate of $0.25 per ton is established for the Washington Cherry Marketing Committee.

    Dated: September 16, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-22740 Filed 9-20-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF COMMERCE Economic Development Administration 13 CFR Part 311 [Docket No.: 150826785-5785-01] RIN 0610-AA67 Innovative Technologies in Manufacturing Loan Guarantee Program AGENCY:

    Economic Development Administration, U.S. Department of Commerce.

    ACTION:

    Notice of proposed rulemaking; request for public comment.

    SUMMARY:

    Through this notice of proposed rulemaking (“NPRM”), the Economic Development Administration (“EDA,” or “the Agency”), U.S. Department of Commerce (“DOC”), proposes and requests comments on the Agency's implementation of section 26 of the Stevenson-Wydler Technology Innovation Act of 1980 (the “Stevenson-Wydler Act”), enacted as part of the America COMPETES Reauthorization Act of 2010 (“COMPETES Act”). The Stevenson-Wydler Act authorizes EDA to provide loan guarantees for obligations to small- and medium-sized manufacturers for the use or production of innovative technologies. These guarantees will enable innovative technology manufacturers to obtain capital otherwise unavailable to them.

    DATES:

    Written comments on this NPRM must be received by EDA's Office of the Chief Counsel no later than 5 p.m. eastern time on December 20, 2016.

    ADDRESSES:

    Comments on the NPRM may be submitted through any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. EDA will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Agency Web site: http://www.eda.gov/. EDA has created an online feature for submitting comments. Follow the instructions at http://www.eda.gov/.

    Mail: Economic Development Administration, Office of the Chief Counsel, U.S. Department of Commerce, 1401 Constitution Avenue NW., Suite 72023, Washington, DC 20230. Please indicate “Comments on EDA's regulations” and Docket No. 150826785-5785-01 on the envelope.

    All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible.

    FOR FURTHER INFORMATION CONTACT:

    Rachel A. Wallace, Attorney-Advisor, Office of the Chief Counsel, Economic Development Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Suite 72023, Washington, DC 20230; telephone: (202) 482-5443.

    SUPPLEMENTARY INFORMATION: Background

    Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA's mission is to lead the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments in and provides technical assistance to economically distressed communities in order to facilitate job creation for U.S. workers, increase private sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 301 through 315, provide the framework through which the Agency administers its economic development assistance programs.

    As part of the COMPETES Act enacted on January 4, 2011, section 26 of the Stevenson-Wydler Act (15 U.S.C. 3721) authorized the Secretary of Commerce “to establish a program to provide loan guarantees for obligations to small- or medium-sized manufacturers for the use or production of innovative technologies.” 15 U.S.C. 3721(a). In general, the Federal loan “guarantee” represents the portion of the loan that the Federal agency will repay to the lender if the borrower defaults on its loan payments. See 15 U.S.C. 3721(s)(4) (definition of “Loan Guarantee”); and 3721(d) (“A loan guarantee shall not exceed an amount equal to 80 percent of the obligation . . .”).

    As required by the Stevenson-Wydler Act, a “loan guarantee may be made under the program only for a project that re-equips, expands, or establishes a manufacturing facility in the United States—(1) to use an innovative technology or an innovative process in manufacturing; (2) to manufacture an innovative technology product or an integral component of such a product; or (3) to commercialize an innovative product, process, or idea that was developed by research funded in whole or in part by a grant from the Federal government.” 15 U.S.C. 3721(b). The Stevenson-Wydler Act defines an “innovative technology” as “a technology that is significantly improved as compared to the technology in general use in the commercial marketplace in the United States at the time the loan guarantee is issued.” 15 U.S.C. 3721(s)(3). Similarly, the term “innovative process” is defined as “a process that is significantly improved as compared to the process in general use in the commercial marketplace in the United States at the time the loan guarantee is issued.” 15 U.S.C. 3721(s)(2).

    The Secretary of Commerce has delegated the responsibility of implementing and administering the Innovative Technologies in Manufacturing (“ITM”) Program, which includes promulgating regulations as required by the Stevenson-Wydler Act (see 13 U.S.C. 3721(l)), to EDA. EDA was appropriated the following amounts for the ITM Program: In fiscal year 2012, up to $5 million; in both of the fiscal years 2013 and 2014, $5 million; and in fiscal year 2015, $4 million. These amounts are “to remain available until expended,” for section 26 loan guarantees “to subsidize total loan principal, any part of which is to be guaranteed, not to exceed $70,000,000.” See Public Law 112-55 (FY12); Public Law 113-6 (FY13); Public Law 113-76 (FY14); Public Law 113-235 (FY15). Put another way, from FY12-FY15, EDA received a total of $14 million and up to $19 million in no-year, appropriated funds to support a maximum of $280 million in loans that would be subject to EDA's guarantee.

    Although EDA administered business loan programs in the past, it has been more than 30 years since the Agency has been actively engaged in the process of loan making. In 1965, Title II of PWEDA (former 42 U.S.C. 3121-3246) authorized EDA to make direct loans and guarantee loans to businesses willing to establish and expand operations in economically distressed areas for the purpose of developing land and facilities for industrial or commercial use. In addition, under the Trade Act of 1974 (former 19 U.S.C. 2341-2374), businesses adversely affected by foreign imports could apply for EDA direct loans and loan guarantees. However, by the mid-1980s EDA had essentially stopped making direct loans and guaranteeing new loans under PWEDA. Similarly, EDA stopped administering loans under the Trade Act when the International Trade Administration's Office of Trade Assistance was created in 1982. Four years later, Congress rescinded the DOC's authority to make Trade Adjustment Assistance loans and loan guarantees in the Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L. 99-272). EDA's authority under PWEDA for making direct loans and loan guarantees was not eliminated until the enactment of the Economic Development Administration and Appalachian Regional Development Act of 1998 (Pub. L. 105-393) which reauthorized EDA's programs for the first time since 1982.

    Given the loss of institutional knowledge over the years, the need to leverage existing staff resources and the unique requirements of the ITM Program, EDA adopted a multi-pronged approach to Program implementation. Seeking to gauge market demand and obtain input about how to structure the Program from the public and stakeholders, on April 17, 2013, EDA published a “Request for Comments on Developing a Program To Provide Loan Guarantees to Small- or Medium-Sized Manufacturers” in the Federal Register (78 FR 22801). EDA received four comments, none from lenders. In general, the commenters noted that similar Federal programs already existed that were not being fully utilized and for the ITM Program to succeed, it needed to be easily accessible.

    At the same time, EDA sought out the expertise and experience of two Federal agencies with well-established business loan programs—the SBA (e.g., 7(a) loan guarantee program) and the Department of Energy (e.g., 1703 Program). Meeting with representatives of these agencies and closely examining the structure of another loan program (the Department of Agriculture's Business & Industry (B&I) Program), provided EDA with invaluable guidance and insight into best practices for standing up a loan guarantee program, including the development of program elements such as borrower eligibility standards and lender oversight, creation of program documents such as forms and operating manuals as well as administrative components such as staffing and electronic loan processing/servicing.

    In 2014, EDA hired a full-time attorney and procured a contractor with extensive Federal loan program expertise to support the Agency's implementation efforts. Equipped with the information gathered from its due diligence and the subsequent analysis, EDA modeled the structure of the ITM Program closely after SBA's 7(a) loan guarantee program (hereinafter, referred to as “SBA's 7(a) program”). Similar to SBA's 7(a) program, the ITM Program is designed to help certain creditworthy businesses—specifically, small and medium-sized manufacturers—acquire financing when they cannot otherwise obtain credit at reasonable terms. EDA, like SBA in the 7(a) context, will not make loans itself. Instead, EDA will guarantee a portion of the loan made by a participating lending institution. Thus, taxpayer funds are only paid out in the event of borrower default. This process reduces the risk to the lender (incentivizing the lender to make the loan), but not to the borrower, who remains obligated for the full debt, even in the event of default. The similarities in the two programs, as well as the significant differences attributable to EDA's own statutory requirements and policy priorities, are reflected in EDA's proposed regulatory framework, which is summarized below. EDA seeks public input through this NPRM on the proposed regulatory framework. In particular EDA seeks comment on:

    • The biggest impediments to small or medium-sized manufacturers receiving a loan from a lending institution.

    • Whether the EDA's ITM loan program would make it more likely for lenders to lend to manufacturers, especially small or medium-sized manufacturers.

    • What lending institutions should require for a borrower to demonstrate that a market exists for an innovative technology product.

    • Whether there is an existing market for small to medium-sized business loans in the innovative manufacturing sector that are not currently being met.

    • What other requirements in a loan guarantee program would be necessary for a lender to offer such loans.

    • The manufacturing size threshold and definition to be considered a medium-sized manufacturer.

    • The typical loan size that a small-medium business in innovative manufacturing would apply for.

    • Whether securing a loan through the EDA ITM program to support the use or production of innovative technologies would assist manufacturers with access to outside capital.

    • Other activities and outcomes from the EDA ITM loan program that would best support innovation in the manufacturing sector.

    EDA also seeks comment on the proposed regulatory text, which is summarized below.

    Subpart A—General Provisions

    Subpart A serves as the foundation of the ITM Program regulations, defining key terms and outlining core programmatic elements. For example, it includes borrower eligibility criteria, types of ineligible businesses, and permissible uses of loan proceeds by borrowers. In addition, lender ethical standards, creditworthiness criteria, additional loan requirements involving personal guarantees, collateral, and bonding are explained. It should be noted that the basic eligibility criteria for both Borrowers and Lenders are similar to SBA's, but have been modified to reflect the statutory requirements and program specific goals of the ITM Program, including the requirement that the applicant borrower be prospectively or currently engaged in an Innovative Technological Project. For the same reasons, eligible uses of ITM Program loan proceeds are different in key respects from SBA's 7(a) program. One notable difference is that unlike SBA, EDA will not permit loan proceeds to be used for working capital. Some of the more significant terms defined in this subpart are highlighted below:

    (1) Associate: An associate is a person or entity with a close connection to an ITM Program lender or borrower, with this legal relationship established if specific criteria are met (e.g., an associate of a lender includes an officer, director, or holder of at least a 5 percent interest of the value of the lender's stock or debt instruments, or an agent involved in the loan process). As set forth in these regulations, the existence of an associate will have ramifications for the lender or borrower, such as affecting a borrower's size for eligibility purposes and having an associate's activities imputed to the lender for conflict of interest purposes.

    (2) Innovative Technological Project: This term captures the requirement in Stevenson-Wydler that a loan guarantee can only be used to finance certain types of projects, emphasizing that the project must be “innovative,” and “Technological in nature,” produce certain products or processes (e.g., a “significantly improved product or process”) and result in one of four required actions (e.g., “utilizing this innovative technology in the process of manufacturing an existing product”).

    (3) Lender: Eligible lenders have been defined as lenders that are in good standing under the SBA Preferred Lenders Program (PLP). Under this program, SBA delegates the final credit decision and most servicing and liquidation authority and responsibility to carefully selected lenders. Lenders are considered for PLP status based on their record with SBA, and must have demonstrated a proficiency in processing and servicing SBA-guaranteed loans. EDA will require lenders to certify that they are in good standing under the PLP at the time a loan application is submitted. Failure by a lender to certify to its status under the PLP will be grounds for denial of its participation in the ITM Program. If it is determined that a lender is not in good standing at the time of certification or at any point after a loan guarantee is approved for that lender, EDA may deny liability on that loan guarantee.

    (4) Manufacturing: Manufacturing includes those activities associated with the relevant six-digit manufacturing NAICS codes (311111-333999).

    (5) Medium-sized Business: A medium-sized business is defined relative to SBA's definition of a small business; namely, a business that has a maximum size that is twice the maximum size of a small business using the same six-digit NAICS code and same measurement standards as the calculation for a small business.

    (6) Small Business: If a business is “small” under SBA's size standards, the business will likewise be considered a small business for purposes of the ITM Program.

    Subpart B—Requirements Imposed Under Other Laws and Orders

    Subpart B discusses various laws and orders applicable to borrowers, lenders and the use of ITM Program loan proceeds. Specifically, flood insurance requirements, child support obligation compliance, flood-plain and wetlands management, lead-based paint requirements, earthquake hazard management, and coastal barrier island restrictions are addressed. In addition, this subpart emphasizes that compliance with all other generally applicable laws such as environmental, civil rights and anti-discrimination laws, is required.

    Subpart C—Applicability and Enforceability of Loan Program Requirements

    Subpart C details the nature of a lender's obligation to comply with the ITM Program requirements. Further, it emphasizes that, because of the status of lenders and borrowers as independent entities, EDA is not liable for any injury suffered as a result of a lender's or borrower's wrong-doing with respect to a loan.

    Subpart D—Loan Applications

    Closely mirroring SBA's 7(a) program regulations and process, subpart D describes the application process for an ITM Program loan, including the required contents of a loan application. In addition, this subpart discusses how lenders and applicants are notified of approval or denial of an application, as well as the procedures involved when a lender is seeking reconsideration of EDA's decision to reject an application.

    Subpart E—Reporting

    Subpart E outlines lender reporting requirements. In addition, it affirms the applicant's duty to disclose any fees paid to agents assisting the applicant in obtaining the loan as well as the obligation of lenders, borrowers and EDA employees to notify the DOC Inspector General of any suspected fraud regarding an ITM Program loan.

    Subpart F—Limitations on Use of Proceeds

    To prevent a potential loss-shift to EDA from an existing borrower obligation, subpart F prohibits a borrower's use of loan proceeds to refinance unsecured or under-secured loans.

    Subpart G—Maturities; Interest Rates; Loan and Guarantee Amounts

    Subpart G delineates the key parameters for loan guarantees made under the ITM Program, including the statutory maximum percentage of a loan eligible for a guarantee, which is 80 percent. The ITM Program regulations impose a loan size limit of $10 million or, if written approval is obtained from EDA, $15 million. This subpart also addresses loan maturities, providing that the term of a loan shall be the lesser of 30 years or 90% of the projected useful life of the financed physical asset. In addition, while covering fixed interest rate loans, this subpart provides that a lender may use a variable rate of interest, upon EDA approval after the lender's satisfaction of certain conditions with respect to the base rate, changes to the rate, amount of fluctuation from the base rate, maximum spreads and amortization.

    Subpart H—Fees

    Subpart H discusses fees that can be properly charged under the ITM Program. These regulatory provisions authorize EDA to charge lenders a guarantee fee as well as a monthly servicing fee. Note that the guarantee fee may be increased if the guaranteed portion of the loan increases. Also discussed in this subpart are the fees that a lender is permitted to charge the borrower, which includes the guarantee fee after the first disbursement as well as service and late payment fees.

    Subpart I—Participation Criteria

    Subpart I discusses requirements for a lender's initial and continued eligibility for participation in the ITM Program. At the outset, this subpart makes clear that EDA may enter into an authorization with a lender to make ITM program loans, which may include terms to allow for the patents and technology needed for the Innovative Technological Project to be available to complete and operate the Innovative Technological Project for any borrower, including EDA pursuant to its rights of subrogation. Among other requirements, the lender must be in good standing under the SBA Preferred Lenders Program at all times and must maintain its ability to evaluate, process, close, disburse, service, liquidate, and litigate loans in its portfolio. One notable difference between the ITM Program and SBA's 7(a) program is that EDA does not allow a lender to securitize or otherwise sell or transfer an ITM Program loan without prior approval from EDA and the execution of a separate securitization agreement with EDA.

    Subpart J—Loan Modifications and Servicing Actions

    Subpart J underscores that a lender may defer payments on a loan and can extend the maturity of a loan only with the prior written consent of EDA. With respect to loan modifications, this subpart addresses standards to which lenders must adhere (e.g., commercially reasonable manner consistent with prudent lending standards) when engaging in loan servicing, liquidation, and debt collection litigation activities. In addition, those servicing and liquidation actions that require the prior written consent of EDA (e.g., compromise of the loan principal balance; accelerating the maturity of the note) are listed.

    Subpart K—EDA Purchase of Guaranteed Portion

    Subpart K applies when a lender requests that EDA honor its guarantee in a default situation. These provisions make clear that as a threshold matter such a demand will be summarily rejected by EDA unless a lender establishes, with sufficient supporting documentation, that the borrower is in uncured default on any installment for more than 60 calendar days, all reasonable workout attempts have failed, and all business personal property securing the defaulted ITM Program loan has been liquidated. With respect to a lender's debt collection efforts, this subpart sets forth the requirements for a lender's liquidation and litigation plans that must be submitted before the lender undertakes such actions, outlines EDA's policies regarding a lender's liquidation of collateral and sale of ITM Program loans, and covers circumstances when EDA will pay its pro rata share of authorized legal fees and expenses. If EDA does purchase the guaranteed portion of an ITM Program loan from the lender, this subpart provides details about accrued interest payments and the applicable interest rate post-EDA purchase. Finally, similar to the SBA 7(a) program's “denial of liability” regulations, these regulations provide that, despite a lender's demand, EDA will be released from liability on a loan guarantee if EDA determines that one or more of ten events have occurred. Such events include a lender's failure to materially comply with any ITM Program requirement, a lender's misrepresentation (or failure to disclose) of a material fact regarding a guaranteed loan, and where a lender's improper action has put EDA at risk.

    Subpart L—Enforcement Actions

    Subpart L focuses on enforcement actions that EDA can take against lenders. Discussed are proper grounds for an enforcement action (e.g., failure to maintain eligibility requirements for the SBA Preferred Lenders Program), types of enforcement actions that EDA may take (e.g., suspension or revocation from the ITM Program), and general procedures for enforcement actions against lenders (e.g., notice of action, Lender's opportunity to object, final agency decision).

    Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons: First, the Agency emphasizes that possible participation in the ITM program by small entities, whether from the lending or borrowing side, is entirely voluntary. Second, this rulemaking is not projected to adversely impact small lenders or borrowers since it does not impose any greater burden with respect to forms, fees, due diligence, or servicing than any other Federal loan guarantee program. The application forms closely match those of already existing loan guarantee programs, most notably SBA's 7(a) loan guarantee program, and the fees are similarly commensurate. As evidenced by these proposed regulations and forthcoming ITM program procedure manuals, reporting, due diligence, and other processes will be a stream-lined version of existing programs which will make the ITM program less burdensome for small entities to use than other programs. As such, the Chief Counsel certifies that this proposed rule will not have a significant impact on a substantial number of small entities.

    Executive Orders No. 12866 and No. 13563

    This proposed rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (OMB), which found the proposed rule to be “significant” as that term is defined in Executive Order 12866 and Executive Order 13563. Accordingly, the proposed rule has undergone interagency review.

    Congressional Review Act

    This proposed rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

    Executive Order No. 13132

    It has been determined that this proposed rule does not contain policies with federalism implications as that term is defined in under Executive Order 13132.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number.

    The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this proposed rule. These collections of information are necessary for the proper performance and functions of EDA.

    Part or section of this final rule Nature of request Form/title/OMB control No. 311.4; 311.5; 311.6 An applicant must provide information to demonstrate that it meets the eligibility criteria including credit availability ED-1920, Lender's Application. 311.8; 311.9; 311.501 An applicant must provide information to show that the proceeds will be used for an eligible use ED-1920, Lender's Application; ED-1050, Settlement Sheet; ED-172, Account Transcripts. 311.10 For property that is purchased with guaranteed funds, an applicant must supply information indicating that the criteria for leasing or renting a property is met before leasing or renting it ED-1920, Lender's Application. 311.11; 311.801 A Lender must supply written assurances to EDA that it will abide by certain ethical requirements ED-1920, Lender's Application. 311.6(n); 311.6(o); 311.11(b) An applicant must supply information and certify that there are not any conflicts of interest between the Lender, Borrower, and EDA ED-1919, Borrower's Information Form; ED-1920, Lender's Application. 311.6(m); 311.11(d); 311.11(g); 311.12(a) An applicant must supply information and certify that it does not have any Associates who render the applicant ineligible by being incarcerated, on probation, or on parole or have been indicted for a felony or a crime of moral turpitude ED-1919, Borrower's Information Form; ED-1920, Lender's Application; ED-912, Statement of Personal History. 311.12; 311.13(a) An applicant must supply adequate information to show that the Borrower (including an Operating Entity) is creditworthy and all loans are sufficiently sound as to reasonably assure repayment. A personal guarantee may be required of a Borrower's Associates ED-1920, Lender's Application; ED-413, Personal Financial Statement. 311.100; 311.101; 311.102; 311.103; 311.104; 311.105; 311.106 Applicants must supply written assurances to EDA that it will abide by the requirements imposed under other laws, restrictions, and orders ED-1919, Borrower's Information Form; ED-413, Personal Financial Statement. 311.300; 311.801(e) Lenders must provide information demonstrating that they are SBA Preferred Lenders in good standing ED-1920, Lender's Application. 311.400 Lenders must agree to submit servicing reports to EDA on a monthly basis for every outstanding loan ED-1502, Monthly Servicing Report. 311.401; 311.702; 311.703; 311.803 Applicants for ITM Program loans must identify to EDA the name of each agent that helped the applicant obtain the loan, describing the services performed, and disclosing the amount of each fee paid or to be paid by the applicant to the agent in conjunction with the performance of those services ED-159, Fee Disclosure and Compensation Agreement; ED-1050, Settlement Sheet. 311.600 Applicants must supply adequate information to certify that the guarantee percentage is 80 percent or less of the entire loan obligation ED-1920, Lender's Application. 311.601 An applicant must supply information and certify that the entire loan obligation is $10 million or less unless a loan amount of up to $15 million is approved by the Deputy Assistant Secretary on a an individual case-by-case basis ED-1920, Lender's Application. 311.602 The applicant must supply information to indicate that the loan term is the lesser of 30 years or 90% of the projected useful life of the physical asset to be financed by the obligation, as determined by the Deputy Assistant Secretary ED-1920, Lender's Application. 311.603; 311.604 The Lender must supply written certification that it agrees to certain interest rates limits ED-1920, Lender's Application. 311.700(a); 311.700(c) If the Borrower seeks to increase or decrease the total loan amount or change the guarantee percentage of an ITM Program loan, the Borrower must have supplied information that indicates agreement to an increase in the guarantee fee. A Borrower must further supply written documentation that indicates acknowledgment that a refund of the guarantee fee will occur only if the decrease in the loan amount happens before the first disbursement ED-2237, Approval Action Modification Form. 311.701 Lender must supply information that shows it agrees to pay the servicing fee on a monthly basis while submitting the monthly servicing report ED-1502, Monthly Servicing Report. 311.801(a)(2) Lenders must supply loan transaction data to EDA and maintain satisfactory performance as determined by EDA through analysis of that data ED-1502, Monthly Servicing Report. 311.900; 311.901; 311.904 Before modifying loan terms, Lenders must supply the proposed modification information to EDA and request authorization from EDA to changes to loan terms including but not limited to changes in the loan amount, an extension of maturity, and any other changes to the loan that effect EDA's risk ED-2237, Approval Action Modification Form. 311.1000(a); 311.1000(b) A Lender must supply written confirmation that it agrees to refrain from requesting a purchase of a defaulted loan by EDA until the Borrower has been in default for a minimum of 60 days ED-1149, Transcript of Account. 311.1000(b); 311.1004(a) The Lender must provide the documentation to prove the loan has been closed, serviced, and liquidated in a prudent manner and in compliance with ITM program regulations ED-159, Fee Disclosure and Compensation Agreement; ED-1050, Settlement Sheet; ED-1149, Transcript of Account. Regulatory Text

    For the reasons set forth in the preamble, EDA proposes to amend title 13, chapter III of the Code of Federal Regulations by adding part 311 to read as follows:

    PART 311—INNOVATIVE TECHNOLOGIES IN MANUFACTURING LOAN GUARANTEE PROGRAM Subpart A—General Provisions Sec. 311.1 Purpose and scope of the Innovative Technologies in Manufacturing Loan Guarantee Program. 311.2 Description of Innovative Technologies in Manufacturing Loan Guarantee Program. 311.3 Definitions. 311.4 Basic eligibility criteria. 311.5 Credit unavailable elsewhere. 311.6 Ineligible types of businesses. 311.7 Conditions required of an eligible passive entity. 311.8 Eligible uses of proceeds. 311.9 Restrictions on uses of proceeds. 311.10 Leasing part of a building to another business. 311.11 Lender ethical requirements. 311.12 Lending criteria. 311.13 Loan conditions. Subpart B—Requirements Imposed Under Other Laws and Orders 311.100 Flood insurance. 311.101 Compliance with child support obligations. 311.102 Flood-plain and wetlands management. 311.103 Lead-based paint. 311.104 Earthquake hazards. 311.105 Coastal barrier islands. 311.106 Compliance with other laws. Subpart C—Applicability and Enforceability of Loan Program Requirements 311.200 Lender compliance with loan program requirements. 311.201 Status of lenders. 311.202 Status of borrowers. Subpart D—Loan Applications 311.300 Applying for a loan. 311.301 The contents of an ITM Program application. 311.302 Approval or denial. 311.303 Reconsideration after rejection. Subpart E—Reporting 311.400 Monthly servicing report 311.401 Disclosure of fees. 311.402 Notifying DOC's Office of Inspector General of suspected fraud. Subpart F—Limitations on Use of Proceeds 311.500 Refinancing unsecured or under-secured loans. Subpart G—Maturities; Interest Rates; Loan and Guarantee Amounts 311.600 Percentage of a loan eligible for an ITM Program guarantee. 311.601 Loan size limits. 311.602 Limits on loan maturities. 311.603 Fixed interest rate loans. 311.604 Variable interest rate loans. Subpart H—Fees 311.700 Guarantee fee. 311.701 Monthly servicing fee. 311.702 Fees the lender may collect from a loan applicant. 311.703 Fees that the lender or associate may not collect from the borrower or share with third parties. Subpart I—Participation Criteria 311.800 Authorization terms. 311.801 Requirements for all participating lenders. 311.802 Preferences. 311.803 Other services lenders may provide borrowers. 311.804 Advertisement of relationship with EDA. 311.805 Securitization and transfer. Subpart J—Loan Modifications and Servicing Actions 311.900 Deferment of payment. 311.901 Extension of maturity. 311.902 Loan moratoriums.. 311.903 Standards for lender loan servicing, loan liquidation, and debt collection litigation. 311.904 Servicing and liquidation actions that require the prior written consent of EDA. Subpart K—EDA Purchase of a Guaranteed Portion 311.1000 Purchase of loan guarantees. 311.1001 Applicable interest rate after EDA purchases the guranteed portion of an ITM Program loan. 311.1002 Payment of accrued interest to the lender when EDA purchases the guaranteed portion. 311.1003 Earliest uncured payment default. 311.1004 Release of EDA's liability. 311.1005 Liquidation and litigation plans. 311.1006 Payment by EDA of legal fees and other expenses. 311.1007 EDA's policies concerning the liquidation of collateral and the sale of ITM Program loans. 311.1008 Loan asset sales. Subpart L—Enforcement Actions 311.1100 Grounds for enforcement actions. 311.1101 Types of enforcement actions—lenders. 311.1102 General procedures for enforcement actions against lenders. Authority:

    15 U.S.C. 3701 et seq.; Department of Commerce Organization Order 10-4.

    Subpart A—General Provisions
    § 311.1 Purpose and Scope of the Innovative Technologies in Manufacturing Loan Guarantee Program.

    (a) As required by the Stevenson-Wydler Technology Innovation Act of 1980, a loan guarantee may be made under the Innovative Technologies in Manufacturing Loan Guarantee Program only for a project that re-equips, expands, or establishes a manufacturing facility in the United States: To use an innovative technology or an innovative process in manufacturing; to manufacture an innovative technology product or an integral component of such a product; or to commercialize an innovative product, process, or idea that was developed by research funded in whole or in part by a grant from the Federal government. See 15 U.S.C. 3721(b). The Stevenson-Wydler Technology Innovation Act of 1980 defines an “innovative technology” as a technology that is significantly improved as compared to the technology in general use in the commercial marketplace in the United States at the time the loan guarantee is issued. See 15 U.S.C. 3721(s)(3). Similarly, the term “innovative process” is defined as a process that is significantly improved as compared to the process in general use in the commercial marketplace in the United States at the time the loan guarantee is issued. See 15 U.S.C. 3721(s)(2).

    (b) The Secretary of Commerce has delegated the responsibility of implementing and administering the Innovative Technologies in Manufacturing (“ITM”) Program, which includes promulgating regulations as required by the Stevenson-Wydler Technology Innovation Act of 1980 (see 13 U.S.C. 3721(l)), to EDA.

    § 311.2 Description of Innovative Technologies in Manufacturing Loan Guarantee Program.

    A loan is initiated by a Lender agreeing to make an ITM Program-qualifying loan to a borrower. The lender applies to the ITM Program on a loan-by-loan basis. If EDA agrees to guarantee a portion of the loan, the lender funds and services the loan. If the borrower defaults on the loan, EDA's guarantee requires EDA to purchase its portion of the outstanding balance upon demand by the lender and subject to verification that program requirements have been met.

    § 311.3 Definitions.

    As used in this part, the following terms shall have the following meanings:

    Act means section 26 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3721 et seq.).

    Agency means the Economic Development Administration within the U.S. Department of Commerce.

    Assistant Secretary means the Assistant Secretary of Commerce for Economic Development.

    Associate means the following:

    (1) An associate of a lender means:

    (i) An officer, director, or holder of 5 percent or more of the value of the lender's stock or debt instruments, or an agent involved in the loan process; or

    (ii) Any entity in which one or more individuals referred to in paragraph (1)(i) of this definition or a close relative of any such individual owns or controls at least 5 percent.

    (2) An associate of a borrower means:

    (i) An officer, director, designated representative, or owner of more than 5 percent of the borrower's equity;

    (ii) Any entity in which one or more individuals referred to in paragraph (2)(i) of this definition or a close relative of any such individual owns or controls at least 5 percent of the borrower's equity;

    (iii) Any entity in which the borrower owns or controls at least 5 percent; or

    (iv) Any entity holding convertible debt that could result in ownership of at least 5 percent of the borrower wherein the convertible debt is eligible for conversion during the time period discussed in paragraph (3) of this definition.

    (3) For purposes of this definition, the time during which an associate relationship exists commences six months before the following dates and continues as long as the certification, participation agreement, or loan is outstanding:

    (i) For a lender, the date of application for a loan guarantee on behalf of an applicant; or

    (ii) For a borrower, the date of the loan application to EDA, or the lender.

    Bank regulatory agencies means the Federal Deposit Insurance Corporation, the Federal Reserve Board, and the Office of the Comptroller of the Currency.

    Borrower means the person or persons who executed the loan instruments evidencing ITM Program-guaranteed loan.

    Chief Counsel means the Chief Counsel of EDA.

    Close relative means a spouse or partner; a lineal descendent, a lineal ascendant; a sibling; or the spouse of any such person.

    Department of Commerce, Department, or DOC means the U.S. Department of Commerce.

    Eligible passive entity means an entity or trust that does not engage in regular and continuous business activity, but does lease or otherwise provide real or personal property to an operating entity for use in the operating entity's business, and complies with the conditions set forth in § 311.7.

    Guarantor means a person who executed a guarantee as security for a loan instrument executed by a borrower.

    ITM Program loan proceeds means the proceeds paid to a borrower from a lender pursuant to an ITM Program loan.

    Innovative technological project or project is defined as having all of the following criteria:

    (1) Innovative, which is defined as:

    (i) A significant improvement in function, performance, reliability, or quality of a product or service in comparison to commercial technologies currently in use; and

    (ii) The ability for such products or services to be sold based on those improvements.

    (2) Technological in nature, which is defined as relying on the principles of one of the following sciences: engineering, physical sciences, computer sciences, or biological sciences.

    (3) Producing one of the following:

    (i) A significantly improved product or process; or

    (ii) A combination of existing products or processes that result in significantly reduced factor inputs without sacrificing product quality, production throughput, or economies of production.

    (4) Resulting in one of the following actions:

    (i) Utilizing this innovative technology in the process of manufacturing an existing product;

    (ii) Utilizing an existing product where the delivery is the innovative technology;

    (iii) Manufacturing a new innovative technology; or

    (iv) Commercializing an innovative technology that was developed by research funded in part or in whole by Federal grant funding.

    Lender means an institution that is a lender in good standing under the SBA Preferred Lenders Program. Additional eligible institutions may be permitted from time to time at the discretion of the Assistant Secretary.

    Loan instruments means the authorization, note, instruments of hypothecation, and all other agreements and documents related to a loan.

    Loan program requirements means requirements imposed upon lenders by statute, EDA regulations, any agreement executed between the lender and EDA, official EDA notices and forms applicable to the ITM Program, and loan instruments; as such requirements are issued and revised by EDA from time to time.

    Manufacturing means a business with a six-digit NAICS code between 311111-333999, and as such other codes as the Assistant Secretary may provide and publish in the Federal Register.

    Management official means an officer, director, general partner, manager, employee participating in management, agent, or other participant in the management of the affairs of the lender's activities.

    Medium-sized business means a business that has a maximum size that is twice the maximum size of a small business using the same six-digit NAICS code and same measurement standards as the calculation for a small business.

    Obligor means a person with direct liability for repaying the loan such as the borrower and any assumptor, and every person with contingent liability such as the guarantor.

    Operating entity means an eligible small or medium-sized business actively involved in conducting business operations currently or about to be located on real property owned by an eligible passive entity, or using or about to use in its business operations personal property owned by an eligible passive entity.

    Person means any individual, corporation, partnership, association, unit of government, or legal entity, however organized.

    Preference means any arrangement giving a lender a preferred position compared to EDA relating to the making, servicing, or liquidation of a loan with respect to such things as repayment, collateral, guarantees, control, maintenance of a compensating balance, purchase of a certificate of deposit or acceptance of a separate or companion loan, without EDA's consent.

    Project means an Innovative Technological Project as defined in this section.

    Rentable property means the total square footage of all buildings or facilities used for business operations.

    SBA or Small Business Administration means the U.S. Small Business Administration.

    SBA Preferred Lenders Program means the SBA Preferred Lenders Program under 13 CFR 120.450 through 120.453.

    Service provider means an entity that contracts with a lender to perform management, marketing, legal or other services.

    Small business means a business that is small in size by the most current SBA size standards in effect at the time of the application under 13 CFR 121.101 and 121.102 and clarified by any EDA SOPs in effect at the time.

    Small or medium-sized business means, collectively, all small businesses and all medium-sized businesses.

    SOPs means EDA Standard Operating Procedures, as may be issued and revised by EDA from time to time.

    § 311.4 Basic eligibility criteria.

    To be an eligible borrower, an applicant must:

    (a) Be an operating business (except for loans to eligible passive entities);

    (b) Be organized as a for profit entity;

    (c) Be located in the United States (includes territories and possessions);

    (d) Be a small or medium-sized business, when including associates;

    (e) Be prospectively or currently engaged in the manufacture of an Innovative Technological Project (except for loans to eligible passive entities);

    (f) Be able to demonstrate a need for the desired credit per § 311.5; and

    (g) Agree to use a federally-approved electronic employment eligibility verification system to verify the employment eligibility of:

    (1) All persons hired during the contract term or by the borrower to perform employment duties within the United States; and

    (2) All persons assigned by the borrower to perform work within the United States on the project.

    § 311.5 Credit unavailable elsewhere.

    EDA provides loan assistance only to applicants for whom the desired credit is not otherwise available on reasonable terms from non-Federal sources. EDA requires the lender to certify or otherwise show that the desired credit is unavailable to the applicant on reasonable terms and conditions from non-Federal sources without EDA assistance, taking into consideration the prevailing rates and terms in the community in or near where the applicant conducts business, for similar purposes and periods of time. Submission of an application to EDA by a lender constitutes certification by the lender that it has examined the credit-worthiness of the applicant, has based its certification upon that examination, and has justification in its file to support the certification.

    § 311.6 Ineligible types of businesses.

    For those businesses that satisfy basic eligibility criteria under § 311.304, the following types of businesses are still deemed ineligible:

    (a) Non-profit entities (for-profit subsidiaries are eligible);

    (b) Financial businesses primarily engaged in the business of lending, such as banks, finance companies, and factors;

    (c) Passive businesses owned by developers and landlords that do not actively use or occupy the assets acquired or improved with the loan proceeds (except eligible passive entities under § 311.7);

    (d) Life insurance companies;

    (e) Businesses located in a foreign country (businesses in the U.S. owned by aliens may qualify);

    (f) Pyramid sale distribution plans;

    (g) Businesses deriving more than one-third of gross annual revenue from legal gambling activities;

    (h) Businesses engaged in any illegal activity;

    (i) Private clubs and businesses which limit the number of memberships for reasons other than capacity;

    (j) Government-owned entities (except for businesses owned or controlled by a Native American tribe);

    (k) Businesses principally engaged in teaching, instructing, counseling or indoctrinating religion or religious beliefs, whether in a religious or secular setting;

    (l) Consumer and marketing cooperatives (producer cooperatives are eligible);

    (m) Businesses with an associate who is incarcerated, on probation, on parole, or has been indicted for a felony or a crime of moral turpitude;

    (n) Businesses in which the lender, or any of its associates owns an equity interest;

    (o) Businesses for which common ownership between the borrower and lender:

    (1) Existed within six months of the submission of any of the loan instruments by the borrower and lender; or

    (2) Commences existence between the borrower and lender at any time during the loan term;

    (p) Businesses that:

    (1) Present live performances of a prurient sexual nature; or

    (2) Derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature;

    (q) Unless waived by EDA for good cause:

    (1) Business that have previously defaulted on a Federal loan or federally assisted financing, resulting in the Federal Government or any of its agencies or departments sustaining a loss in any of its programs, and businesses owned or controlled by an applicant or any of its associates which previously owned, operated, or controlled a business that defaulted on a Federal loan (or guaranteed a loan that was defaulted) and caused the Federal Government or any of its agencies or departments to sustain a loss in any of its programs. EDA reserves the right to waive this exception for a good cause, including any cases where the loss was paid in full. If a loss is paid in full then the loss may be processed using standard procedures. For purposes of this section, a compromise agreement shall also be considered a loss; or

    (2) Business that have an outstanding delinquent Federal debt;

    (r) Businesses primarily engaged in political or lobbying activities; and

    (s) Business not prospectively or currently engaged in the manufacture of an Innovative Technological Project (except for loans to eligible passive entities).

    § 311.7 Conditions required of an eligible passive entity.

    An eligible passive entity must use loan proceeds to acquire or lease, and/or improve or renovate, real or personal property (including eligible refinancing), that it leases to one or more operating entities for conducting the operating entity's business (references to operating entity in paragraphs (a) and (b) of this section mean each operating entity). Any ownership structure or legal form may qualify as an eligible passive entity.

    (a) Conditions that apply to all legal forms:

    (1) The operating entity must be an eligible small or medium-sized business, and the proposed use of the proceeds must be an eligible use if the operating entity were obtaining the financing directly;

    (2) The eligible passive entity (with the exception of a trust) and the operating entity each must be a small or medium-sized business under the appropriate size standards defined in § 311.3;

    (3) The lease between the eligible passive entity and the operating entity must be in writing and must be subordinated to any security interest EDA may have on the property. Also, the eligible passive entity (as landlord) must furnish as collateral for the loan an assignment of all rents paid under the lease;

    (4) The lease between the eligible passive entity and the operating entity, including options to renew exercisable solely by the operating entity, must have a remaining term at least equal to the term of the loan;

    (5) The operating entity must be a guarantor or co-borrower with the eligible passive entity. In an ITM Program loan that includes the purchase of other assets, including intangible assets, for the operating entity's use, the operating entity must be a co-borrower; and

    (6) The eligible passive entity and the operating entity must guarantee the loan (the trustee shall execute the guarantee on behalf of any trust).

    (b) Additional conditions that apply to trusts. The eligibility status of the trustor will determine trust eligibility. All donors to the trust will be deemed to have trustor status for eligibility purposes. A trust qualifying as an eligible passive entity may engage in other activities as authorized by its trust agreement. The trustee must warrant and certify that the trust will not be revoked or substantially amended for the term of the loan without the consent of EDA. The trustor must guarantee the loan. For purposes of this section, the trustee shall certify to EDA that:

    (1) The trustee has authority to act;

    (2) The trust has the authority to borrow funds, pledge trust assets, and lease the property to the operating entity;

    (3) The trustee has provided accurate, pertinent language from the trust agreement confirming the above; and

    (4) The trustee has provided and will continue to provide EDA with a true and complete list of all trustors and donors.

    § 311.8 Eligible uses of proceeds.

    A borrower must use an ITM Program loan for sound business purposes. The uses of proceeds are prescribed in each loan's loan instruments. A borrower may use ITM Program loan proceeds to:

    (a) Acquire land (by purchase or lease);

    (b) Improve a site (e.g., grading, streets, parking lots, landscaping), including up to 5 percent for community improvements such as curbs and sidewalks;

    (c) Purchase one or more existing buildings;

    (d) Convert, expand, or renovate one or more existing buildings;

    (e) Construct one or more new buildings;

    (f) Acquire (by purchase or lease) and install fixed assets;

    (g) Refinance existing debt for eligible uses;

    (h) Purchase inventory, supplies, and/or raw materials; and/or

    (i) License or purchase licenses to the necessary intellectual property related to the Innovative Technological Project such as patents, trademarks, etc., as long as the licensure or purchased license will be used to make a product or improve a process consistent with an Innovative Technological Project.

    § 311.9 Restrictions on uses of proceeds.

    EDA will not authorize nor may a borrower use loan proceeds for the following purposes (including the replacement of funds used for any such purpose):

    (a) Payments, distributions, or loans to associates of the borrower (except for ordinary compensation for services rendered);

    (b) Refinancing a debt that was not incurred for uses indicated in § 311.8;

    (c) Floor plan financing or other revolving line of credit;

    (d) Investments in real or personal property acquired and held primarily for sale, lease, or investment;

    (e) A purpose that does not benefit the small or medium-sized business;

    (f) Operating working capital;

    (g) Paying past-due Federal, State, and local payroll taxes; or

    (h) Any use restricted by any provision under this part.

    § 311.10 Leasing part of a building to another business.

    A borrower may permanently lease up to 49 percent of the rentable property to one or more tenants if the borrower permanently occupies and uses no less than 51 percent of the rentable property for the Innovative Technological Project or Projects. The Projects need not be owned solely by the borrower as long as they are bona fide Projects. If the borrower is an eligible passive entity that leases 100 percent of the new building's space to one or more operating entities, the operating entity, or operating entities together, must follow the same rule set forth in this paragraph.

    § 311.11 Lender ethical requirements.

    Lenders must act ethically and exhibit good character. Ethical indiscretion of an associate of a lender will be attributed to the lender. A lender must promptly notify EDA if it obtains information concerning the unethical behavior of an associate. The following are examples of such unethical behavior. A lender may not:

    (a) Self-deal;

    (b) Have a real or apparent conflict of interest with a business with which it is dealing (including any of its associates or an associate's close relatives) or EDA;

    (c) Own an equity interest in a business that has received or is applying to receive EDA credit support (during the term of the loan or within 6 months prior to the loan application);

    (d) Be incarcerated, on parole, or on probation;

    (e) Knowingly misrepresent or make a false statement to EDA;

    (f) Engage in conduct reflecting a lack of business integrity or honesty;

    (g) Be a convicted felon, or have an adverse final civil judgment (in a case involving fraud, breach of trust, or other similar conduct) that would cause the public to question the lender's business integrity, taking into consideration such factors as the magnitude, repetition, harm caused, and remoteness in time of the activity or activities in question;

    (h) Accept funding from any source that restricts, prioritizes, or conditions the types of businesses that the lender may assist under an EDA program;

    (i) Fail to disclose to EDA all relationships between the business and its associates (including close relatives of associates), the lender, and/or the lenders financing the Innovative Technological Project of which the lender is aware or should be aware;

    (j) Fail to disclose to EDA whether the loan will:

    (1) Reduce the exposure of a lender or an associate of a lender in a position to sustain a loss;

    (2) Directly or indirectly finance the purchase of real estate, personal property or services (including insurance) from the lender or an associate of the lender;

    (3) Repay or refinance a debt due a lender or an associate of a lender; or

    (4) Require the business or an associate (including close relatives of associates), to invest in the borrower (except for institutions which require an investment from all members as a condition of membership, such as a Production Credit Association);

    (k) Issue a real estate forward commitment to a builder or developer;

    (l) Cease being prospectively or currently engaged in the manufacture of an Innovative Technological Project (except for loans to eligible passive entities); or

    (m) Engage in any activity that impairs, restricts, or otherwise limits the lender's objective judgment in evaluating the loan.

    § 311.12 Lending criteria.

    The borrower (including an operating entity) must be creditworthy. Loans must be sufficiently sound as to reasonably assure repayment. When reviewing ITM Program applications, EDA will consider the follow factors of an applicant's, an applicant's associates, and any guarantors of the applicant:

    (a) Character, reputation, and credit history;

    (b) Experience and depth of management;

    (c) Strength of the business;

    (d) Past earnings, projected cash flow, and future prospects;

    (e) Ability to repay the loan with earnings from the business;

    (f) Sufficient invested equity to operate on a sound financial basis;

    (g) Potential for long-term success;

    (h) Nature and value of collateral (although inadequate collateral will not be the sole reason for denial of a loan request); and

    (i) The effect any associates may have on the ultimate repayment ability of the applicant.

    § 311.13 Loan conditions.

    The following requirements are normally required for all ITM Program loans:

    (a) Personal guarantees. Holders of at least a 5 percent ownership interest must guarantee a percentage of the loan, as determined by the lender. For loans over $10 million, a personal guarantee will be determined by EDA. EDA, in its discretion, consulting with the lender, may require other appropriate individuals to guarantee the loan as well.

    (b) Appraisals. Lenders shall use a prudent policy that is substantially comparable to non-guaranteed commercial loans.

    (c) Hazard Insurance. EDA requires hazard insurance on all collateral. Lenders may use prudent policy that is similar to those requirements for substantially comparable non-guaranteed commercial loans.

    (d) Collateral. Lenders shall use a prudent policy that is substantially comparable to non-guaranteed commercial loans.

    (e) Bonding requirements. On loans that finance construction, the lender must use a construction management company or the borrower must supply a 100 percent payment and performance bond and builder's risk insurance, unless waived by EDA.

    Subpart B—Requirements Imposed Under Other Laws and Orders
    § 311.100 Flood insurance.

    Under the Flood Disaster Protection Act of 1973 (Sec. 205(b) of Pub. L. 93-234 (42 U.S.C. 4000 et seq.)), a loan recipient must obtain flood insurance if any building (including mobile homes), machinery, or equipment acquired, installed, improved, constructed, or renovated with the ITM Program loan proceeds is located in a special flood hazard area. The requirement applies also to any inventory, fixtures, or furnishings contained or to be contained in the building. Mobile homes on a foundation are buildings. If required, lenders must notify borrowers that flood insurance must be maintained.

    § 311.101 Compliance with child support obligations.

    Any holder of 50% or more of the ownership interest in the borrower must certify that he or she is not more than 60 days delinquent on any obligation to pay child support arising under:

    (a) An administrative order;

    (b) A court order;

    (c) A repayment agreement between the holder and a custodial parent; or

    (d) A repayment agreement between the holder and a State agency providing child support enforcement services.

    § 311.102 Flood-plain and wetlands management.

    (a) All loans must conform to requirements of Executive Orders 11988, “Flood Plain Management” (3 CFR, 1977 Comp., p. 117) and 11990, “Protection of Wetlands” (3 CFR, 1977 Comp., p. 121). Lenders must comply with requirements applicable to them. Applicants must show:

    (1) Whether the location for which financial assistance is proposed is in a floodplain or wetland;

    (2) If it is in a floodplain, that the assistance is in compliance with local land use plans; and

    (3) That any necessary construction or use permits will be issued.

    (b) Generally, there is an 8-step decision making process with respect to:

    (1) Construction or acquisition, other than of a building;

    (2) Repair and restoration equal to more than 50% of the market value of a building; or

    (3) Replacement of destroyed structures.

    (c) EDA may determine for the following types of actions, on a case-by-case basis, that the full 8-step process is not warranted and that only the first step (determining if a proposed action is in the base floodplain) need be completed:

    (1) Actions located outside the base floodplain;

    (2) Repairs, other than to buildings, that are less than 50% of the market value of the building;

    (3) Replacement of building contents, materials, and equipment;

    (4) Hazard mitigation measures; or

    (5) EDA loan assistance of $1,500,000 or less, including ITM Program loans.

    § 311.103 Lead-based paint.

    If loan proceeds are for the construction or rehabilitation of a residential structure, lead-based paint may not be used on any interior surface, or on any exterior surface that is readily accessible to children under the age of seven years.

    § 311.104 Earthquake hazards.

    When loan proceeds are used to construct a new building or an addition to an existing building, the construction must conform with the “National Earthquake Hazards Reduction Program (“NEHRP”) Recommended Provisions for the Development of Seismic Regulations for New Buildings” (which can be obtained from the Federal Emergency Management Agency, Publications Office, Washington, DC) or a code identified by EDA as being substantially equivalent.

    § 311.105 Coastal barrier islands.

    Neither lenders nor EDA may make or guarantee any loan within the Coastal Barrier Resource System as a part of the ITM Program.

    § 311.106 Compliance with other laws.

    All ITM Program loans are subject to all applicable laws, including (without limitation) all applicable environmental laws as well as civil rights laws and laws prohibiting discrimination on the grounds of race, color, national origin, religion, sex, marital status, disability or age. EDA may request agreements or evidence to support or document compliance with these laws, including reports required by applicable statutes or the regulations in this chapter.

    Subpart C—Applicability and Enforceability of Loan Program Requirements
    § 311.200 Lender compliance with loan program requirements.

    Lenders must comply and maintain familiarity with loan program requirements for the ITM Program, as such requirements are revised from time to time. Loan program requirements in effect at the time that a lender takes an action in connection with a particular loan govern that specific action. For example, although loan closing requirements in effect when a lender closes a loan will govern the closing actions, a lender's liquidation actions on the same loan are subject to the liquidation requirements in effect at the time that a liquidation action is taken.

    § 311.201 Status of lenders.

    Lenders and their contractors are independent entities that are responsible for their own actions with respect to a loan. EDA has no responsibility or liability for any claim by a borrower, guarantor or other party alleging injury as a result of any allegedly wrongful action taken by a lender, an employee, an agent, or a contractor of a lender.

    § 311.202 Status of borrowers.

    Borrowers and their contractors are independent entities that are responsible for their own actions with respect to a loan. EDA has no responsibility or liability for any claim by any entity alleging injury as a result of any allegedly wrongful action taken by a borrower, an employee, an agent, or a contractor of a borrower.

    Subpart D—Loan Applications
    § 311.300 Applying for a loan.

    An applicant for a loan seeking to participate in the ITM Program should apply to a lender who is an SBA preferred lender.

    § 311.301 The contents of an ITM Program application.

    For most ITM Program loans, EDA requires that an ITM Program application contain, among other things, a description of the history and nature of the business, the amount and purpose of the loan, the lender's credit memorandum, the collateral offered for the loan, current financial statements, historical financial statements (or tax returns if appropriate) for the past three fiscal years, IRS tax verification, and a business plan, when applicable. Personal histories and financial statements may be required from the applicant and associates of the applicant (and the operating entity, if applicable).

    § 311.302 Approval or denial.

    The lender will receive written notice of acceptance or rejection for participation in the ITM Program by EDA, and will pass the decision on to the applicant. Notice of rejection will include the reasons for rejection.

    § 311.303 Reconsideration after rejection.

    If a lender believes the reasons for rejection have been overcome, the lender may submit a request for reconsideration to EDA along with a detailed written explanation of how the loan applicant has overcome the reason(s) for the rejection. The request must be submitted to EDA within 6 months of the rejection. Any request submitted more than 90 days after the date of the rejection must include current financial statements. The request for reconsideration will be reviewed by two officials designated by the Assistant Secretary. If the two officials agree on a decision (acceptance or rejection), the decision will be final. If the two officials do not agree, the Assistant Secretary will make the final decision. In either case, EDA will inform the lender, in writing, of the final decision.

    Subpart E—Reporting
    § 311.400 Monthly servicing report.

    Lenders must submit a servicing report to EDA on a monthly basis for every loan outstanding. EDA may request such loan servicing information including principal and interest payments, fee payments, loan status, and any additional information as the Assistant Secretary sees fit. Lenders may collect and store loan data using a prudent policy similar to their policy for non-guaranteed commercial loans.

    § 311.401 Disclosure of fees.

    An applicant for an ITM Program loan must identify to EDA the name of each agent that helped the applicant obtain the loan, describing the services performed, and disclosing the amount of each fee paid or to be paid by the applicant to the agent in conjunction with the performance of those services. Form ED-159 provides full limitations on fee amounts and eligible services.

    § 311.402 Notifying DOC's Office of Inspector General of suspected fraud.

    Lenders, borrowers, and EDA employees must notify the Department's Office of Inspector General of any information of which they are aware indicating that fraud may have occurred in connection with an ITM Program loan. Send the notification to the U.S. Department of Commerce, Office of Inspector General, 1401 Constitution Avenue NW., Washington, DC 20230, telephone (202) 482-4661.

    Subpart F—Limitations on Use of Proceeds
    § 311.500 Refinancing unsecured or under-secured loans.

    A borrower may not use ITM Program loan proceeds to pay any creditor in a position to sustain a loss causing a shift to EDA of all or part of a potential loss from an existing debt.

    Subpart G—Maturities; Interest Rates; Loan and Guarantee Amounts
    § 311.600 Percentage of a loan eligible for an ITM Program guarantee.

    EDA's guarantee percentage must not exceed the applicable percentage established in the Act. The maximum allowable guarantee percentage on a loan shall not exceed an amount equal to 80 percent of the obligation, as determined at the time at which the loan guarantee is issued.

    § 311.601 Loan size limits.

    The maximum size for a loan that is eligible for the ITM Program is $10 million; however, loans as large as $15 million may be approved by the Assistant Secretary on a case-by-case basis.

    § 311.602 Limits on loan maturities.

    The term of a loan shall be the lesser of 30 years or 90% of the projected useful life, as determined by the Assistant Secretary or designee, of the physical asset to be financed by the obligation.

    § 311.603 Fixed interest rate loans.

    A loan may have a fixed interest rate based on EDA's maximum allowable rates as published periodically in the Federal Register.

    § 311.604 Variable interest rate loans.

    A Lender may use a variable rate of interest, upon EDA's approval. EDA shall approve the use of a variable interest rate under the following conditions:

    (a) Frequency. Any change in the interest rate may only occur on the first calendar day of a month, with the first change allowed in the first month following initial disbursement. The new rate will use the base rate (see paragraph (c) of this section) in effect on the first business day of the month.

    (b) Range of fluctuation. The amount of fluctuation shall be equal to the movement in the base rate. The difference between the initial rate and the ceiling rate may be no greater than the difference between the initial rate and the floor rate.

    (c) Base rate. The base rate will be one of the following:

    (i) The prime rate as printed in a national financial newspaper published each business day;

    (ii) The 3-month London Interbank Offered Rate (LIBOR) as printed in a national financial newspaper published each business day; or

    (iii) Five-year Treasuries as printed in the Federal Reserve's H.15 release, as in effect on the first business day of the month.

    (d) Maximum spreads. The maximum spread will be defined based on the base rate. A spread of 2.75 percentage points for prime rate, 5.75 percentage points for LIBOR rate, or 4.75 percentage points for Treasury rate will be the maximum allowed, unless otherwise decided by the Assistant Secretary and published in the Federal Register.

    (e) Amortization. A lender is required to reamortize the loan on the first calendar day of the month following an interest rate change so that the loan will be paid off by the maturity date of the note, as amended. With prior approval of EDA, the lender may use a different amortization schedule; however, EDA does not permit amortization schedules that involve balloon notes or balloon payments.

    (f) Accrual method. Lenders may use either a 30/360 or actual/365 accrual method for ITM Program loans (actual/366 in leap years). Actual/360 and other methods may not be used.

    Subpart H—Fees
    § 311.700 Guarantee fee.

    (a) Amount of guarantee fee. The guarantee fee that the lender must pay to EDA shall be published in the Federal Register prior to the first day of a fiscal year. Should the loan guarantee amount increase, the amount of the guarantee fee will correspondingly increase.

    (b) When the guarantee fee is payable. The Lender must pay the guarantee fee to EDA within 90 days after EDA gives its loan approval. The lender may charge the borrower the fee after the lender has made the first disbursement of the loan. The borrower may use the loan proceeds to pay the guarantee fee. The first disbursement, however, must not be made solely or primarily to pay the guarantee fee.

    (c) Refund of guarantee fee. EDA will refund the guarantee fee if the lender has not made any disbursement and the lender requests in writing the refund and cancellation of the EDA guarantee. If any disbursements have been made, the entire fee will be retained.

    (d) Payment of the guarantee fee. The borrower may use non-revolving working capital loan proceeds to reimburse the lender for the guarantee fee. If the guarantee fee is not paid, EDA may terminate the guarantee.

    (e) Acceptance of the guarantee fee. Acceptance of the guarantee fee by EDA shall not waive any right of EDA arising from the lender's misconduct or violation of any provision of this part, the guarantee agreement, the authorization, or other loan documents.

    § 311.701 Monthly servicing fee.

    A lender must pay an on-going monthly servicing fee to EDA for each guaranteed loan it makes. If the servicing fee is not paid, EDA may terminate the guarantee. Acceptance of the servicing fee by EDA does not waive any right of EDA arising from a lender's or borrower's negligence, misconduct or violation of any provision of these regulations or the loan instruments. The servicing fee that the lender must pay to EDA shall be published in the Federal Register prior to the first day of a fiscal year and is due at the time of the monthly servicing report. Fees collected on a loan in which EDA refuses to pay the guarantee will not be refunded. The servicing fee cannot be charged to the borrower. EDA may institute a late fee charge for delinquent payments of the servicing fee to cover administrative costs associated with collecting delinquent fees.

    § 311.702 Fees the lender may collect from a loan applicant.

    The lender may charge borrowers fees that are consistent with prudent policy and similar in all material respects to the fees assessed against non-guaranteed commercial loans. The fees contemplated in this section may include service and packaging fees, extraordinary servicing fees, out-of-pocket expenses, late payment fees, and prepayment fees, among others.

    § 311.703 Fees that the lender or associate may not collect from the borrower or share with third parties.

    The lender or its associates may not:

    (a) Require the applicant or borrower to pay the lender, an associate, or any party designated by either, any fees or charges for goods or services, including insurance, as a condition for obtaining an ITM Program loan (unless permitted by this part);

    (b) Charge an applicant any commitment, bonus, broker, commission, referral or similar fee;

    (c) Charge points or add-on interest; or

    (d) Charge the borrower for legal services, unless they are hourly charges for requested services actually rendered.

    Subpart I—Participation Criteria
    § 311.800 Authorization terms.

    EDA may enter into an authorization with a lender to make ITM Program loans. Such an authorization does not obligate EDA to participate in any specific proposed loan that a lender may submit. The existence of an authorization does not limit EDA's rights to refuse to guarantee a specific loan or establish general ITM Program policies. An authorization shall include such detailed terms and conditions as the Assistant Secretary determines appropriate to:

    (a) Protect the interests of the United States in the event of default; and

    (b) Ensure all the patents and technology necessary are available to complete and operate the Innovative Technological Project for any borrower, including EDA in subrogation of the borrower as discussed in § 311.1000.

    § 311.801 Requirements for all participating lenders.

    A lender must be in good standing under the SBA Preferred Lenders Program at all times to have any loans be eligible for the ITM Program. In addition, the lender must:

    (a) Have a continuing ability to evaluate, process, close, disburse, service, liquidate, and litigate loans in its portfolio including, but not limited to:

    (1) Not being under any capital limitations by the FDIC to support ITM Program lending activities (for lenders with a Federal Financial Institution Regulator, meeting capital requirements for an adequately capitalized financial institution is considered sufficient); and

    (2) Maintaining satisfactory performance, as determined by EDA in its discretion. Factors may include, but are not limited to historical performance measures (such as default rate, purchase rate, and loss rate), timely and accurate remittance of fees and monthly servicing reports, loan volume to the extent it impacts performance measures, and other performance-related measurements and information (such as contribution toward EDA's ITM Program mission);

    (b) Be open to the public for the making of such loans (not be a financing subsidiary, engaged primarily in financing the operations of an affiliate);

    (c) Have continuing good character and reputation, and otherwise meet and maintain the ethical requirements of § 311.11;

    (d) Be supervised and examined by:

    (1) A Federal Financial Institution Regulator,

    (2) A state banking regulator satisfactory to the SBA Preferred Lenders Program, or

    (3) SBA in its capacity under the SBA Preferred Lenders Program;

    (e) Certify that it is in good standing with SBA Preferred Lenders Program and, as applicable, with an SBA lender's state regulator satisfactory to the SBA Preferred Lenders Program and Federal Financial Institution Regulator;

    (f) Operate in a safe and sound condition using commercially reasonable lending policies, procedures, and standards employed by prudent lenders in the SBA Preferred Lenders Program; and

    (g) Allow the Assistant Secretary and the Comptroller General of the United States, or their duly authorized representatives, access to records and other pertinent documents for the purpose of conducting an audit in a reasonable and timely manner.

    § 311.802 Preferences.

    An agreement to participate under the Act may not establish any preferences in favor of the lender.

    § 311.803 Other services lenders may provide borrowers.

    Subject to § 311.11 lenders, their associates, or the designees of either may provide services to and contract for goods with a borrower only after full disbursement of the loan to the business or to an account not controlled by the lender, its associate, or the designee. A lender, an associate, or a designee providing such services must do so under a written contract with the borrower, based on time and hourly, or fee for service charges, and must maintain time and billing records for examination by EDA. Fees cannot exceed those charged by established professional consultants providing similar services.

    § 311.804 Advertisement of relationship with EDA.

    A Lender may refer in its advertising to its participation with EDA. The advertising may not:

    (a) State or imply that the lender, or any of its borrowers, has or will receive preferential treatment from EDA;

    (b) Be false or misleading; or

    (c) Make use of DOC's or EDA's seals, emblems, insignias, or logos.

    § 311.805 Securitization and transfer.

    No participating lender may securitize or otherwise, sell all or a participating portion of an ITM Program loan, or pledge an ITM Program loan without seeking and obtaining approval from the Assistant Secretary and executing a separate securitization agreement with EDA prior to securitizing. Securitization is governed by the provisions of that agreement, any related SOPs, and EDA's relevant regulations.

    Subpart J—Loan Modifications and Servicing Actions
    § 311.900 Deferment of payment.

    The lender may request, and EDA may agree, to defer principal, interest, or both principal and interest payments on a loan for a stated period of time, and use such other methods as it considers necessary and appropriate to help in the successful operation of the borrower.

    § 311.901 Extension of maturity.

    EDA may agree to extend the maturity of a loan for up to 10 years beyond its original maturity if the extension will aid in the orderly repayment of the loan provided that the borrower maintains sufficient collateral.

    § 311.902 Loan moratoriums.

    EDA may assume a borrower's obligation to repay principal and interest on a loan by agreeing to make the payments to the Lender on behalf of the borrower under terms and conditions set by EDA. This relief is called a “moratorium.” Complete information concerning this program may be obtained from EDA.

    § 311.903 Standards for lender loan servicing, loan liquidation, and debt collection litigation.

    (a) Service using prudent lending standards. Lenders must service ITM Program loans in their portfolio no less diligently than their non-ITM Program portfolio, and in a commercially reasonable manner, consistent with prudent lending standards, and in accordance with loan program requirements. Lenders that maintain an ITM Program loan portfolio must adhere to the same prudent lending standards for loan servicing followed by commercial lenders on loans without a government guarantee.

    (b) Liquidate using prudent lending standards. Lenders must liquidate and conduct debt-collection litigation for ITM Program loans in their portfolio no less diligently than for their non-ITM Program portfolio. Lenders must do so in a prompt, cost-effective and commercially reasonable manner, consistent with prudent lending standards, and in accordance with loan program requirements and with any EDA approval of either a liquidation or litigation plan or any amendment of such a plan. Lenders that do not maintain a non-ITM Program loan portfolio must adhere to the same prudent lending standards followed by commercial lenders that liquidate loans without a government guarantee. They must also agree to operate in accordance with loan program requirements and with any EDA approval of either a liquidation or litigation plan or any amendment of such a plan.

    (c) EDA rights to take over servicing or liquidation. EDA may, in its sole discretion, undertake the servicing, liquidation and/or litigation of any ITM Program loan. If EDA elects to service, liquidate, and/or litigate a loan, it will notify the relevant lender in writing, and, upon receiving such notice, the lender must assign the loan instruments to EDA and provide any needed assistance to allow EDA to service, liquidate, and/or litigate the loan. EDA will notify the borrower of the change in servicing. EDA may use contractors to perform these actions.

    § 311.904 Servicing and liquidation actions that require the prior written consent of EDA.

    (a) Actions by lenders. Except as otherwise provided in a supplemental authorization with a lender, EDA must give its prior written consent before a lender takes any of the following actions:

    (1) Increases the principal amount of a loan above that authorized by EDA at loan origination.

    (2) Confers a preference on the lender or engages in an activity that creates a conflict of interest.

    (3) Compromises the principal balance of a loan.

    (4) Takes title to any property in the name of EDA.

    (5) Takes title to environmentally contaminated property, or takes over operation and control of a business that handles hazardous substances or hazardous wastes.

    (6) Transfers, sells or pledges a loan.

    (7) Substantially alters the terms or conditions of any loan instrument.

    (8) Releases collateral so as to cause the liquidation value of the remaining collateral to be less than 110% of the remaining outstanding balance of the loan.

    (9) Accelerates the maturity of the note.

    (10) Compromises or releases any claim against any borrower or obligor, or against any guarantor, standby creditor, or any other person that is contingently liable for moneys owed on the loan.

    (11) Accepts a workout plan to restructure the material terms and conditions of a loan that is in default or liquidation.

    (12) Takes any action for which prior written consent is required by a loan program requirement.

    (b) Documentation requirements. For all servicing/liquidation actions not requiring EDA's prior written consent, Lenders must document the justifications for their decisions and retain those and any supporting documents in their file for future EDA review to determine if the actions taken by the lender were prudent, commercially reasonable, and compliant with all ITM Loan Program Requirements.

    Subpart K—EDA Purchase of a Guaranteed Portion
    § 311.1000 Purchase of loan guarantees.

    (a) When EDA will purchase. A lender may demand in writing that EDA honor its guarantee if the Borrower is in uncured default on any installment for more than 60 calendar days (or less if EDA agrees), all reasonable workout attempts have failed, and all business personal property securing the defaulted ITM Program loan has been liquidated. The borrower must be in uncured default for at least 60 days prior to the lender beginning any liquidation. A lender may also submit a request for purchase of a defaulted ITM Program loan when a borrower files for Federal bankruptcy as long as a period of at least 60 days has elapsed since the last full installment payment. If a borrower cures a default before a lender requests purchase by EDA, the lender's right to request purchase on that default lapses. EDA considers liquidation of business personal property collateral to be completed when a lender has exhausted all prudent and commercially reasonable efforts to collect upon these assets. In addition, EDA, in its sole discretion, may purchase the guaranteed portion of a loan at any time whether in default or not, with or without the request from a lender.

    (b) Documentation for purchase. EDA will not purchase its guaranteed portion of a loan from a lender unless the lender has submitted to EDA documentation that EDA deems sufficient to allow EDA to determine whether purchase of the guarantee is warranted under § 311.1004.

    (c) No waiver of EDA's rights. Purchase by EDA of the guaranteed portion of a loan, or of a portion of EDA's guarantee of a loan, either through a negotiated agreement with a lender or otherwise, does not waive any of EDA's rights to recover from the responsible lender any money paid on the guarantee based upon the occurrence of any of the events set forth in § 311.1004 in connection with that loan.

    (d) EDA's rights of subrogation. If EDA makes a payment under § 311.1000, EDA shall be subrogated to the rights, as specified in the loan instruments, of the recipient of the payment or related agreements. EDA's rights with respect to any property acquired pursuant to the loan instruments or related agreement shall be superior to the rights of any other person with respect to that property. These rights include, if appropriate, the authority (notwithstanding any other provisions of the law):

    (1) To complete, maintain, operate, lease, or otherwise dispose of any property acquired pursuant to such loan guarantee or related agreement; or

    (2) To permit the borrower, pursuant to an agreement with EDA, to continue to pursue the purposes of the project if the Assistant Secretary determines that such an agreement is in the public interest.

    § 311.1001 Applicable interest rate after EDA purchases the guaranteed portion of an ITM Program loan.

    When EDA purchases the guaranteed portion of a fixed interest rate loan, the rate of interest remains as stated in the note. On loans with a variable interest rate, the interest rate that the Borrower owes will be at the rate in effect at the time of the earliest uncured payment default, or the rate in effect at the time of purchase if no default has occurred.

    § 311.1002 Payment of accrued interest to the lender when EDA purchases the guaranteed portion.

    (a) Rate of interest. If EDA purchases the guaranteed portion from a lender, it will pay accrued interest at:

    (1) The rate in the note if it is a fixed rate loan; or

    (2) The rate in effect on the date of the earliest uncured payment default, or of EDA's purchase (if there has been no default).

    (b) Payment to lender. EDA will pay up to a maximum of 180 days interest to a lender at the time of guarantee purchase.

    § 311.1003 Earliest uncured payment default.

    The earliest uncured payment default is the date of the earliest failure by a borrower to pay a regular installment of principal and/or interest when due. Payments made by the borrower before a lender makes its request to EDA to purchase are applied to the earliest uncured payment default with payment first applied to outstanding accrued interest then principal. If the installment is paid in full, the earliest uncured payment default date will advance to the next unpaid installment date. If a borrower makes any payment after the lender makes its request to EDA to purchase, the earliest uncured payment default date does not change because the lender has already exercised its right to request purchase.

    § 311.1004 Release of EDA's liability.

    (a) EDA is released from liability on a loan guarantee (in whole or in part, within EDA's exclusive discretion), if any of the events below occur:

    (1) The lender has failed to comply materially with any loan program requirement for ITM Program loans.

    (2) The lender has failed to make, close, service, or liquidate a loan in a prudent manner;

    (3) The lender's improper action or inaction has placed EDA at risk;

    (4) The lender has failed to disclose a material fact to EDA regarding a guaranteed loan in a timely manner;

    (5) The lender has misrepresented a material fact to EDA regarding a guaranteed loan;

    (6) EDA has received a written request from the lender to terminate the guarantee;

    (7) The lender has not paid the guarantee fee within the period required under EDA rules and regulations;

    (8) The lender has failed to request that EDA purchase a guarantee within 180 days after the maturity date of the loan. Notwithstanding, if the lender is conducting liquidation or debt collection litigation in connection with a loan that has matured, EDA will be released from its guarantee only if the lender fails to request that EDA purchase the guarantee within 180 days after the completion of the liquidation or debt collection litigation;

    (9) The lender has failed to use required EDA forms or exact electronic copies; or

    (10) The borrower has paid the loan in full.

    (b) If EDA determines, at any time, that any of the events set forth in paragraph (a) of this section occurred in connection with that loan, EDA is entitled to recover any moneys paid on the guarantee plus interest from the lender responsible for those events.

    (c) If the lender's loan documentation or other information indicates that one or more of the events in paragraph (a) of this section occurred, EDA may undertake such investigation as it deems necessary to determine whether to honor or deny the guarantee, and may withhold a decision on whether to honor the guarantee until the completion of such investigation.

    (d) Any information provided to EDA by a lender or other party will not prejudice, or be construed as any waiver of, EDA's right to deny liability for a guarantee if one or more of the events listed in paragraph (a) of this section occur.

    (e) Unless EDA provides written notice to the contrary, the lender remains responsible for all loan servicing and liquidation actions until EDA honors its guarantee in full.

    § 311.1005 Liquidation and litigation plans.

    (a) EDA oversight. EDA may monitor or review liquidation through the review of liquidation plans that lenders must submit to EDA for approval prior to undertaking liquidation, and through liquidation wrap-up reports that lenders must submit to EDA at the completion of liquidation. EDA will monitor debt collection litigation, such as judicial foreclosures, bankruptcy proceedings and other state and Federal insolvency proceedings, through the review of litigation plans, as set forth in this section.

    (b) Liquidation plan. A lender must, prior to undertaking any liquidation, submit a written proposed liquidation plan to EDA and receive EDA's written approval of that plan.

    (c) Litigation plan. A lender must obtain EDA's prior approval of a litigation plan before proceeding with any Non-Routine Litigation, as defined in paragraph (c)(1) of this section. EDA's prior approval is not required for routine litigation, as defined in paragraph (c)(2) of this section.

    (1) Non-routine litigation includes:

    (i) All litigation where factual or legal issues are in dispute and require resolution through adjudication;

    (ii) Any litigation where legal fees are estimated to exceed $10,000;

    (iii) Any litigation involving a loan where a lender has an actual or potential conflict of interest with EDA; and

    (iv) Any litigation involving an ITM Program loan where the lender has made or is servicing a separate loan to the same borrower or an associate of the borrower that is not an ITM Program loan.

    (2) Routine litigation means uncontested litigation, such as non-adversarial matters in bankruptcy and undisputed foreclosure actions, having estimated legal fees not exceeding $10,000.

    (d) Decision by EDA to take over litigation. If a lender is conducting, or proposes to conduct, debt collection litigation on an ITM Program loan, EDA may take over the litigation if EDA determines that the outcome of the litigation could adversely affect EDA's administration of the ITM Program or that the Government is entitled to legal remedies that are not available to the Lender. Examples of cases that could adversely affect EDA's administration of the ITM Program include, but are not limited to, situations where EDA determines that:

    (1) The litigation involves important governmental policy or program issues;

    (2) The case is potentially of great precedential value or there is a risk of adverse precedent to the Government;

    (3) The lender has an actual or potential conflict of interest with EDA;

    (4) The legal fees of the lender's outside counsel are unnecessary, unreasonable, or not customary in the locality; or

    (5) The litigation adversely affects EDA's financial interest in the loan.

    (e) Amendments to a liquidation or litigation plan. Lenders must submit an amended liquidation or litigation plan to address any material changes arising during the course of the liquidation or litigation that were not addressed in the original plan or an amended plan. Lenders must obtain EDA's written approval of the amended plan prior to taking any further liquidation or litigation action. Examples of such material changes that would require the approval of an amended plan include, but are not limited to:

    (1) Changes arising during the course of routine litigation that transform the litigation into non-routine litigation, such as when the debtor contests a foreclosure or when the actual legal fees incurred exceed $10,000;

    (2) If EDA has approved a litigation plan where anticipated legal fees exceed $10,000, or has approved an amended plan, and thereafter the anticipated or actual legal fees increase by more than 15 percent of the amount in the plan most recently approved by EDA; or

    (3) If EDA has approved a liquidation plan, or an amended plan, and thereafter the anticipated or actual costs of conducting the liquidation increase by more than 15 percent of the amount in the plan most recently approved by EDA.

    (f) Limited waiver of need for a written liquidation or litigation plan. EDA may, in its sole discretion, and upon request by a Lender, waive the requirements of paragraphs (b), (c), or (e) of this section if the following conditions are met:

    (1) One of the following extraordinary circumstances exists to warrant such a waiver:

    (i) Expeditious action is needed to avoid the potential risk of loss on the loan or dissipation of collateral exists;

    (ii) An immediate response is required to litigation by a borrower, guarantor or third party; or

    (iii) Any other urgent reason as determined by EDA arises;

    (2) The lender obtains EDA's written consent to such waiver before undertaking the palliative emergency action, if at all practicable;

    (3) EDA's waiver will apply only to the specific action(s) that the lender has identified to EDA as being necessary to address the emergency; and

    (4) The lender, as soon after the emergency as is practicable, submits a written liquidation or litigation plan to EDA or, if appropriate, a written amended plan, and may not take further liquidation or litigation action without written approval of such plan or amendment by EDA.

    (g) Appeals. A lender that made loans under its authority that disagrees with EDA's decision pertaining to an original or amended liquidation plan, other than such portions of the plan that address litigation matters, may appeal this decision in writing within 30 days of the decision to an official designated by the Assistant Secretary. That official will review the original decision and make a final decision based on the information submitted with the original request and any additional information provided by the lender. The additional information should address any concerns identified by the initial reviewing official. If the issue under discussion is part of a litigation plan, the Chief Counsel for EDA will review the initial decision and any additional information submitted by the bank and make a final decision on the appeal.

    § 311.1006 Payment by EDA of legal fees and other expenses.

    (a) Legal fees EDA will not pay. (1) EDA will not pay legal fees or other costs that a Lender incurs:

    (i) In asserting a claim, cross claim, counterclaim, or third-party claim against EDA or in defense of an action brought by EDA, unless payment of such fees or costs is otherwise required by Federal law.

    (ii) In connection with actions of a lender's outside counsel for performing non-legal liquidation services, unless authorized by EDA prior to the action.

    (iii) In taking actions that solely benefit a lender and that do not benefit EDA, as determined by EDA.

    (2) EDA will not pay legal fees or other costs a lender incurs in the defense of, or pay for any settlement or adverse judgment resulting from, a suit, counterclaim, or other claim by any borrower, guarantor, or other party that seeks damages based upon a claim that the lender breached any duty or engaged in any wrongful actions, unless EDA expressly directed the lender to undertake the allegedly wrongful action that is the subject of the suit, counterclaim or other claim.

    (b) Legal fees EDA may decline to pay. In addition to any right or authority EDA may have under law or contract, EDA may, in its discretion, decline to pay a lender for all, or a portion, of legal fees and/or other costs incurred in connection with the liquidation and/or litigation of an ITM Program loan under any of the following circumstances:

    (1) EDA determines that the lender failed to perform liquidation or litigation promptly and in accordance with commercially reasonable standards, in a prudent manner, or in accordance with any loan program requirement or EDA approvals of either a liquidation or litigation plan or any amendment of such a plan.

    (2) A lender fails to obtain prior written approval from EDA for any liquidation or litigation plan, or for any amended liquidation or litigation plan, or for any action set forth in § 311.902, when such approval is required by these regulations or a loan program requirement.

    (3) If EDA has not specifically approved fees or costs identified in an original or amended liquidation or litigation plan under § 311.1005, and EDA determines that such fees or costs are not reasonable, customary or necessary in the locality in question. In such cases, EDA will pay only such fees as it deems are necessary, customary and reasonable in the locality in question.

    (c) Appeals—liquidation costs. A lender that disagrees with a decision by EDA to decline to reimburse all, or a portion, of the fees and/or costs incurred in conducting liquidation may appeal this decision in writing within 30-calendar days of the decision to an official designated by the Assistant Secretary. The official designated by the Assistant Secretary will make the final decision. If the issue under discussion involves litigation expenses, the decision-making official will consult with the Chief Counsel prior to making a final determination.

    (d) Appeals—litigation costs. A lender that disagrees with a decision by EDA to decline to reimburse all, or a portion, of the legal fees and/or costs incurred in conducting debt collection litigation may appeal this decision in writing within 30 calendar days of the decision to an official designated by the Assistant Secretary. The appeal may include additional information to assist in reaching a final decision. The final decision will be made by an official designated by the Assistant Secretary who was not involved in the initial decision. This official will consult with the Chief Counsel prior to making a final determination.

    § 311.1007 EDA's policies concerning the liquidation of collateral and the sale of ITM Program loans.

    (a) Liquidation policy. EDA or the lender, with approval of EDA, may liquidate collateral securing a loan if the loan is in default.

    (b) Sale and conversion of loans. Without the consent of the borrower, EDA may sell ITM Program loans to qualified bidders by means of competitive procedures at publicly advertised sales. Bidder qualifications will be set for each sale in accordance with the terms and conditions of each sale.

    (c) Disposal of collateral and assets acquired through foreclosure or conveyance. EDA or the lender, with the consent of EDA, may sell real and personal property (including contracts and claims) pledged to secure a loan that is in default in accordance with the provisions of the related security instrument.

    (1) Competitive bids or negotiated sales. Generally, EDA will offer loan collateral and acquired assets for public sale through competitive bids at auctions or sealed bid sales. The lender may use negotiated sales if consistent with its usual practice for similar non-EDA assets.

    (2) Lease of acquired property. EDA and the lender will consider proposals for a lease if it appears a property cannot be sold advantageously and the lease may be terminated on reasonable notice upon receipt of a favorable purchase offer.

    (d) Recoveries and security interests shared. EDA and the lender will share pro rata (in accordance with their respective interests in a loan) all loan payments or recoveries, including proceeds from asset sales, all reasonable expenses (including advances for the care, preservation, and maintenance of collateral securing the loan and the payment of senior lienholders), and any security interest or guarantee (excluding EDA's guarantee) which the lender or EDA may hold or receive in connection with a loan.

    (e) Guarantors. Guarantors of financial assistance have no rights of contribution against EDA on an ITM Program loan. EDA is not deemed to be a co-guarantor with any other guarantors.

    § 311.1008 Loan asset sales.

    (a) General. Loan asset sales are governed by this section.

    (b) The lender will be deemed to have consented to EDA's sale of the loan (guaranteed and unguaranteed portions) in an asset sale conducted or overseen by EDA upon the occurrence of:

    (1) EDA's purchase of the guaranteed portion from the lender, provided however, that if EDA purchased the guaranteed portion pursuant to §§ 311.1000 through 311.1003 prior to the lender's completion of all liquidation actions with respect to the loan, then EDA will not sell such loan in an asset sale until nine months from the date of EDA's purchase; or

    (2) EDA receives written consent from the lender.

    (c) For loans identified in paragraph (b)(1) of this section, the lender may request that EDA withhold the loan from an asset sale if the lender submits a written request to EDA within 15 business days of EDA's purchase of the guaranteed portion of the loan from the registered holder and if such request addresses the issues described in this subparagraph. The lender's written request must advise EDA of the status of the loan, the lender's plans for workout and/or liquidation, including any pending sale of loan collateral or foreclosure proceedings arranged prior to EDA's purchase that already are underway, and the lender's estimated schedule for restructuring the loan or liquidating the collateral. EDA will consider the lender's request and, based on the circumstances, EDA in its sole discretion may elect to defer including the loan in an asset sale in order to provide the lender additional time to complete the planned restructuring and/or liquidation actions.

    (d) After EDA has purchased the guaranteed portion of a loan from the lender, the lender must continue to perform all necessary servicing and liquidation actions for the loan up to the point the loan is transferred to the purchaser in an asset sale. The lender also must cooperate and take all necessary actions to effectuate both the asset sale and the transfer of the loan to the purchaser in the asset sale.

    Subpart L—Enforcement Actions
    § 311.1100 Grounds for enforcement actions.

    (a) Agreement. By making ITM Program loans, EDA lenders automatically agree to the terms, conditions, and remedies in the loan program requirements, as promulgated or issued from time to time and as fully set forth in the authorization or other applicable participation, guaranty, or supplemental agreement.

    (b) Scope. Upon determination that the grounds applicable to an enforcement action exist, EDA may undertake one or more of the actions listed in § 311.1101 or as otherwise authorized by law.

    (c) General grounds for enforcement actions. Except as provided in paragraphs (d) and (e) of this section, the grounds that may trigger an enforcement action against a lender include:

    (1) Failure to maintain eligibility requirements for SBA Preferred Lenders Program;

    (2) Failure to comply materially with any requirement imposed by ITM Program requirements;

    (3) Making a material false statement or failure to disclose a material fact to EDA. A material fact includes but is not limited to any fact that is necessary to make a statement not misleading in light of the circumstances under which the statement was made;

    (4) Not performing underwriting, closing, disbursing, servicing, liquidation, litigation or other actions in a commercially reasonable and prudent manner for an ITM Program loan;

    (5) Failure within the time period specified to correct an underwriting, closing, disbursing, servicing, liquidation, litigation, or reporting deficiency, or failure in any material respect to take other corrective action, after receiving notice from EDA of a deficiency and the need to take corrective action;

    (6) Engaging in a pattern of uncooperative behavior or taking an action that EDA determines is detrimental to an EDA program, that undermines management or administration of a program, or that is not consistent with standards of good conduct. Prior to issuing a notice of a proposed enforcement action or immediate suspension under § 311.1101 based upon this paragraph, EDA must send prior written notice to the Lender explaining why the lender's actions were uncooperative, detrimental to the program, undermined EDA's management of the program, or were not consistent with standards of good conduct. The prior notice must also state that the lender's actions could give rise to a specified enforcement action, and provide the Lender with a reasonable time to cure the deficiency before any further action is taken;

    (7) Repeated failure to correct continuing deficiencies;

    (8) Unauthorized disclosure of reports, any ratings assigned to the lender by EDA, or confidential information;

    (9) Indictment on felony or fraud charges of an officer, or loan agent involved with ITM Program loans for the lender;

    (10) As otherwise authorized by law;

    (11) Upon a determination by EDA that one or more of the grounds in paragraph (c) of this section, as applicable, exist and that immediate action is needed to prevent significant impairment of the integrity of the ITM Program;

    (12) Upon a determination by EDA that one or more of the grounds in paragraph (c) of this section exists and that immediate action is needed to prevent significant impairment of the integrity of the ITM Program; and

    (13) Any other reason that EDA determines may increase EDA's financial risk.

    (d) Grounds required for certain enforcement actions against lenders. The grounds that are required to take enforcement action are:

    (1) For ITM Program suspensions and revocations

    (i) False statements knowingly made in any required written submission to EDA; or

    (ii) An omission of a material fact from any written submission required by EDA; or

    (iii) A willful or repeated violation of EDA regulations; or

    (iv) A willful or repeated violation of any condition imposed by EDA with respect to any application, request, or agreement with EDA; or

    (v) A violation of any cease and desist order of EDA.

    (2) For ITM Program immediate suspension—EDA may suspend a lender, effective immediately, if in addition to meeting the grounds set forth in paragraph (d)(1) of this section, the Assistant Secretary finds extraordinary circumstances requiring immediate action in order to protect the financial or legal position of the United States.

    (3) For cease and desist orders

    (i) A violation of EDA regulations, or

    (ii) Where a lender is or is about to engage in any acts or practices that will violate EDA's regulations.

    (4) For an emergency cease and desist order

    (i) Where grounds for cease and desist order are met,

    (ii) The Assistant Secretary finds extraordinary circumstances, and

    (iii) EDA must act expeditiously to protect the financial or legal position of the United States.

    (5) For transfer of loan portfolio

    (i) Where a court has appointed a receiver; or

    (ii) The lender is either not in compliance with capital requirements or is insolvent. A lender is insolvent within the meaning of this provision when all of its capital, surplus, and undivided profits are absorbed in funding losses and the remaining assets are not sufficient to pay and discharge its contracts, debts, and other obligations as they come due.

    (6) For transfer of servicing activity—(i) Where grounds for transfer of loan portfolio are met; or

    (ii) Where the lender is otherwise operating in an unsafe and unsound condition.

    § 311.1101 Types of enforcement actions—lenders.

    Upon a determination that the grounds set forth in § 311.110 exist, EDA may undertake, in its discretion, one or more of the following enforcement actions for each of the types of lenders listed. EDA will take such action in accordance with procedures set forth in § 311.1102. If enforcement action is taken under this section and the lender fails to implement required corrective action in any material respect within the required timeframe in response to the enforcement action, EDA may take further enforcement action, as authorized by law. EDA's decision to take an enforcement action will not, by itself, invalidate a guarantee previously provided by EDA.

    (a) Enforcement actions against lenders—(1) Imposition of portfolio guarantee dollar limit. EDA may limit the maximum dollar amount that EDA will guarantee on the lender's ITM Program loans.

    (2) Suspension or revocation from EDA program. EDA may suspend or revoke a lender's authority to participate in the ITM Program, including the authority to make, service, liquidate, or litigate ITM Program loans. Section 311.1100(d)(1) sets forth the grounds for EDA program suspension or revocation of a lender.

    (3) Immediate suspension. EDA may suspend, effective immediately, a lender's authority to participate in the ITM Program, or the authority to make, service, liquidate, or litigate ITM Program loans. Section 311.1100(d)(2) sets forth both the grounds for immediate suspension of delegated authority for all lenders and grounds for immediate suspension of a lender.

    (4) Debarment. In accordance with 2 CFR parts 180 and 2700, EDA may take any necessary action to debar a person, as defined in § 311.3, including but not limited to an officer, a director, a general partner, a manager, an employee, an agent, or other participant in the affairs of a lender's ITM Program-related operations.

    (5) Other actions available under law. EDA may take all other enforcement actions against lenders available under law.

    (b) Enforcement actions specific to lenders. In addition to those enforcement actions listed in paragraph (a) of this section, EDA may take any one or more of the following enforcement actions specific to lenders:

    (1) Cease and desist order. EDA may issue a cease and desist order against the lender. The cease and desist order may either require the lender to take a specific action, or to refrain from a specific action. The cease and desist order may be issued as effective immediately (or as a proposal for order).

    (2) Prohibited actions. EDA may prohibit a management official from participating in management of the ITM Program loan or from reviewing, approving, closing, servicing, liquidating or litigating any ITM Program loan, or any other activities of the lender while the removal proceeding is pending in order to protect a lender or the interests of EDA.

    (3) Initiate request for appointment of receiver. EDA may make application to a district court to take exclusive jurisdiction of a lender and appoint a trustee or receiver to hold or administer the portfolio of ITM Program loans and sell such loans to a third party, and/or take possession of servicing activities of ITM Program loans and sell such servicing rights to a third party.

    (4) Civil monetary penalties for report filing failure. EDA may seek civil penalties of not more than $5,000 a day against a lender that fails to file any regular or special report by its due date as specified by regulation or EDA written directive.

    § 311.1102 General procedures for enforcement actions against lenders.

    (a) In general. Except as otherwise set forth for the enforcement actions listed in paragraphs (b) and (c) of this section, EDA will follow the procedures listed below.

    (1) EDA's notice of enforcement action. (i) When undertaking an immediate suspension under § 311.1101 or prior to undertaking an enforcement action set forth in § 311.1101, EDA will issue a written notice to the affected lender identifying the proposed enforcement action or notifying it of an immediate suspension. The notice will set forth in reasonable detail the underlying facts and reasons for the proposed action or immediate suspension. If the notice is for a proposed or immediate suspension, EDA will also state the scope and term of the proposed or immediate suspension.

    (ii) If a proposed enforcement action or immediate suspension is based upon information obtained from a third party other than the lender, EDA's notice of proposed action or immediate suspension will provide copies of documentation received from such third party, or the name of the third party in case of oral information, unless EDA determines that there are compelling reasons not to provide such information. If compelling reasons exist, EDA will provide a summary of the information it received to the lender.

    (2) Lender's opportunity to object. (i) A lender that desires to contest a proposed enforcement action or an immediate suspension must file, within 30 calendar days of its receipt of the notice or within some other term established by EDA in its notice, a written appeal to the appropriate EDA official identified in the notice. Notice will be presumed to have been received within five calendar days of the date of the notice unless the Lender can provide compelling evidence to the contrary.

    (ii) The lender's appeal must set forth in detail all grounds known to the Lender to contest the proposed action or immediate suspension and all mitigating factors, and must include documentation that the lender believes is most supportive of its appeal. A lender must exhaust this administrative remedy in order to preserve its appeal to a proposed enforcement action or an immediate suspension.

    (iii) If a lender can reasonably demonstrate, as determined by EDA, that the lender does not understand the justification given by EDA in its notice of the action, the agency will provide clarification. EDA will provide the requested clarification in writing to the lender or notify the lender in writing that EDA has determined that such clarification is not necessary. EDA, in its sole discretion, will further advise in writing whether the lender may have additional time to present its appeal to the notice. Requests for clarification must be made to the appropriate EDA official identified in the notice in writing and received by EDA within the 30 calendar day timeframe or the timeframe given by the notice for response.

    (iv) A lender may request additional time to respond to EDA's notice if it can show that there are compelling reasons why it is not able to respond within the 30-day timeframe or the response timeframe given by the notice. If such requests are submitted to the agency, EDA may, in its sole discretion, provide the requesting lender with additional time to respond to the notice of proposed action or immediate suspension. Requests for additional time to respond must be made in writing to the appropriate EDA official identified in the notice and received by EDA within the 30 calendar day timeframe or the response timeframe given by the notice.

    (v) Prior to the issuance of a final decision by EDA, if a lender can show that there is newly discovered material evidence that, despite the lender's exercise of due diligence, could not have been discovered within the timeframe given by EDA to respond to a notice, or that there are compelling reasons beyond the lender's control as to why it was not able to present a material fact or argument to EDA, and that the lender has been prejudiced by not being able to present such information, the lender may submit such information to EDA and request that the Agency consider such information in its final decision.

    (3) EDA's notice of final agency decision where lender filed appealed the proposed action or immediate suspension.

    (i) If the affected lender timely appeals a proposed enforcement action other than an immediate suspension in accordance with this section, EDA must issue a written notice of final decision to the affected lender advising whether EDA is undertaking the proposed enforcement action and setting forth the grounds for the decision. EDA will issue such a notice of decision within 90 calendar days of either receiving the appeal or from when additional information is provided under paragraph (a)(2)(v) or (a)(3)(iii) of this section, whichever is later, unless EDA provides notice that it requires additional time.

    (ii) If the affected lender timely appeals a notice of immediate suspension, EDA must issue a written notice of final decision to the affected lender within 30 calendar days of receiving the appeal advising whether EDA is continuing with the immediate suspension, unless EDA provides notice that it requires additional time. If the lender submits additional information to EDA (under paragraph (a)(2)(v) or (a)(3)(iii) of this section) after submitting its appeal but before EDA issues its final decision, EDA must issue its final decision within 30 calendar days of receiving such information, unless EDA provides notice that it requires additional time.

    (iii) Prior to issuing a notice of decision, EDA may request additional information from the affected lender or other parties and conduct any other investigation it deems appropriate. If EDA determines, in its sole discretion, to consider an untimely appeal, it must issue a notice of final decision pursuant to this paragraph (a)(3).

    (4) EDA's notice of final agency decision where no appeal was filed or an untimely appeal was not considered. If EDA chooses not to consider an untimely appeal or if the affected lender fails to file a written appeal to a proposed enforcement action or an immediate suspension, and if EDA continues to believe that such proposed enforcement action or immediate suspension is appropriate, EDA must issue a written notice of final decision to the affected lender that EDA is undertaking one or more of the proposed enforcement actions against the lender or that an immediate suspension of the lender will continue. Such a notice of final decision need not state any grounds for the action other than to reference the lender's failure to file a timely appeal, and represents the final agency decision.

    (5) Appeals. A lender may appeal the final agency decision only in the appropriate Federal District Court.

    Dated: August 30, 2016. Roy K.J. Williams, Assistant Secretary of Commerce for Economic Development.
    [FR Doc. 2016-22284 Filed 9-20-16; 8:45 am] BILLING CODE 3510-24-P
    DEPARTMENT OF COMMERCE Economic Development Administration 13 CFR Part 312 [Docket No.: 160615526-6526-01] RIN 0610-AA68 Regional Innovation Program AGENCY:

    Economic Development Administration, U.S. Department of Commerce.

    ACTION:

    Notice of proposed rulemaking; request for public comment.

    SUMMARY:

    Through this notice of proposed rulemaking (“NPRM”), the Economic Development Administration (“EDA” or “the Agency”), U.S. Department of Commerce (“DOC”), proposes and requests comments on the Agency's implementation of the Regional Innovation Program as authorized by section 27 of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (“Stevenson-Wydler” or the “Act”). Through the Regional Innovation Strategies Program (“RIS Program”), the centerpiece of the Regional Innovation Program, EDA currently awards grants for capacity-building programs that provide proof-of-concept and commercialization assistance to innovators and entrepreneurs and for operational support for organizations that provide essential early-stage funding to startup companies. This NPRM, for the first time, lays out the overarching regulatory framework for the Regional Innovation Program and specifically focuses on outlining the structure of the RIS Program.

    DATES:

    Written comments on this NPRM must be submitted by November 21, 2016.

    ADDRESSES:

    Comments on the NPRM may be submitted through any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. EDA will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Email: [email protected] Include “Comments on EDA's Regional Innovation Program regulations” and Docket No. 160615526-6526-01 in the subject line of the message.

    Fax: (202) 482-5671. Please indicate “Attention: Office of the Chief Counsel; Comments on EDA's Regional Innovation Program regulations” and Docket No. 160615526-6526-01 on the cover page.

    Mail: Economic Development Administration, Office of the Chief Counsel, U.S. Department of Commerce, 1401 Constitution Avenue NW., Suite 72023, Washington, DC 20230. Please indicate “Comments on EDA's Regional Innovation Program regulations” and Docket No. 160615526-6526-01 on the envelope.

    All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible.

    FOR FURTHER INFORMATION CONTACT:

    Mara Quintero Campbell, Regional Counsel, Office of the Chief Counsel, Economic Development Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Suite 72023, Washington, DC 20230; telephone: (202) 482-9055.

    SUPPLEMENTARY INFORMATION:

    Background on Regional Innovation Program History

    In recent years, concerns about America's global competitiveness led to calls for the Federal Government to more actively foster innovation and better coordinate Federal support for scientific and technological research and development, technology transfer, and commercialization. In particular, without Federal support, local communities struggled to effectively support the development of regional innovation clusters (defined below), which research has shown to be a significant catalyst of economic development. At the same time, regional innovation was hampered by limited access to the capital necessary to implement the innovative manufacturing technologies required to compete in the twenty-first century global economy.

    In response to these concerns and with a desire to maintain America's role as a leader in innovation, Congress enacted section 27 of Stevenson-Wydler (“section 27” or “Regional Innovation Program”) as part of the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010, Public Law 111-358 (Jan. 5, 2010) (“COMPETES Act”). As originally enacted by Congress, section 27 authorized the Secretary of Commerce (“Secretary”) to “establish a regional innovation program to encourage and support the development of regional innovation strategies, including regional innovation clusters and science and research parks.” In 2014, Congress enacted legislation that narrowed the scope of the Regional Innovation Program. See Public Law 113-235 (Dec. 16, 2014). This legislative change is discussed more fully below. The Regional Innovation Program now encompasses two complementary sub-programs: the Regional Innovation Strategies Program (“RIS Program”) set forth in section 27(b) of the Act, and the Regional Innovation Research and Information Program (“RIRI Program”) set forth in section 27(c) of the Act.

    Given EDA's leadership in and support of innovation and entrepreneurship as key elements of a robust economy, the Secretary turned to EDA to develop and implement the Regional Innovation Program. Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA leads the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments to facilitate job creation for U.S. workers, increase private-sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 300 through 315, provide the framework through which the Agency administers its economic development assistance programs.

    Structure

    Through the RIS Program (section 27(b) of Stevenson-Wydler), the core of the Regional Innovation Program, EDA competitively awards grants to eligible applicants for activities related to the formation and development of regional innovation clusters. 15 U.S.C. 3722(b). Stevenson-Wydler defines a regional innovation cluster as “a geographically bounded network of similar, synergistic, or complementary entities that—(A) are engaged in or with a particular industry sector and its related sectors; (B) have active channels for business transactions and communication; (C) share specialized infrastructure, labor markets, and services; and (D) leverage the region's unique competitive strengths to stimulate innovation and create jobs.” 15 U.S.C. 3722(f)(1). The RIRI Program (section 27(c) of Stevenson-Wydler) is designed to formulate and disseminate best practices for regional innovation strategies, provide technical assistance for the development and implementation of regional innovation strategies, support the development of metrics to evaluate regional innovation strategies, collect and publicize data on regional innovation cluster activity in the United States, and fund competitive research grants to support the goals of the RIRI Program. This NPRM focuses on the RIS Program because EDA has not yet implemented the RIRI Program. However, these proposed regulations—and, in particular, the definition sections—are structured to incorporate the RIRI Program into a future subpart C of part 312 of title 13 of the Code of Federal Regulations once EDA implements the RIRI Program. In addition to awarding grants under the RIS and RIRI Programs, EDA anticipates at a future date conducting COMPETES Act prize competitions that support the goals and objectives of the Regional Innovation Program. See 15 U.S.C. 3719.

    EDA's economic development assistance programs under PWEDA and the RIS Program seek to increase economic growth and resilience, enhance prosperity, and improve quality of life, but they approach the goal from different angles, as reflected in the enabling statutes and regulations. For example, the focus of PWEDA's core programs is increasing employment and private investment in economically distressed regions. Funding generally is limited to regions that meet chronic high unemployment or low per capita income criteria, and grant rates increase with the level of economic distress up to a maximum of 100 percent in limited circumstances. Conversely, the RIS Program focuses on encouraging scientific and technological innovation and collaboration; it thus provides funding to a broader range of entities and does not require applicants to demonstrate economic distress. Moreover, it also is capped at a 50 percent grant rate.

    Implementation

    EDA publicly launched the RIS Program in September 2014 when it announced the first round of competitions for funding under the Program. The announcement of a Federal Funding Opportunity (“FFO”) identified three separate competitions for a total of $15 million in Federal funding: the i6 Challenge, Science and Research Park Development Grants, and Seed Fund Support (“SFS”) Grants (formerly known as Cluster Grants for Seed Capital Funds). The i6 Challenge, first launched in 2010 as part of the multi-agency Startup America Initiative, is designed to support the creation of programs for innovation and entrepreneurship—specifically, the development, creation, or expansion of proof-of-concept and commercialization programs that increase the development of innovations, ideas, intellectual property, and research into viable companies. Science and Research Park Development Grants supported feasibility and planning studies to create innovation hubs for driving the results of applied research and development to the commercial marketplace by supporting the entire product or process lifecycle from idea generation to business creation.

    SFS Grants support activities related to the feasibility, planning, formation, launch, or expansion of cluster-based seed capital funds to assist innovation-based startups with high growth potential. After considering more than 240 applications, in early 2015, EDA awarded 17 i6 Grants, 12 Science and Research Park Development Grants, and 9 SFS Grants to applicants throughout EDA's six regions.

    In 2014, Congress amended the Regional Innovation Program in section 705 of the Revitalize American Manufacturing and Innovation Act of 2014, Public Law 113-235 (Dec. 16, 2014) (“RAMI”). Under RAMI, Congress eliminated the provisions authorizing Science and Research Park Development Grants and Loan Guarantees for Science Park Infrastructure but did maintain eligibility for such parks to apply for RIS awards. Accordingly, when EDA announced a second round of RIS Program competitions in August 2015, it included $10 million in Federal funding for i6 Challenge Grants and SFS Grants, and no longer had a separate Science and Research Park Development Grant competition. In addition, consistent with changes made by Congress in RAMI to section 27(b)(7) of the Act, EDA implemented a targeted outreach program to ensure that public and private sector entities in rural communities were aware of the opportunity. After considering 168 applications for funding, EDA awarded 17 i6 Grants and 8 SFS Grants in early 2016.

    A third round of competitions for $15 million in funding for i6 Challenge Grants and SFS Grants was announced in April 2016.

    With EDA's RIS funding, successful applicants have undertaken transformative projects such as the development of a hardware entrepreneurship ecosystem, expansion of a seed capital fund focused on commercializing water technology, and investigation of the feasibility of constructing a test track for connected and autonomous vehicles. Grant recipients are required to provide semi-annual reports, using EDA-developed metrics that are consistent across grantees, that EDA uses to evaluate the impact of the RIS Program.

    Administration

    Administration and management of the Regional Innovation Program is an EDA-wide responsibility. The Regional Innovation Program (including the RIS Program) is broadly overseen by the Office of Innovation and Entrepreneurship (“OIE”), which was established by the Secretary pursuant to section 25(c) of the Act. Housed within EDA, OIE works to foster a more innovative U.S. economy focused on turning new ideas and inventions into products and technologies that spur job growth and competitiveness while promoting economic development through innovation and entrepreneurship. In addition, EDA's Deputy Assistant Secretary for Regional Affairs has served as the Grants Officer for RIS Program awards, with day-to-day administration of these awards being handled by the Agency's regional offices.

    Because of significant differences in EDA's authority under PWEDA and Stevenson-Wydler, EDA is proposing regulations specific to the Regional Innovation Program. This NPRM focuses on the RIS Program, the only portion of the Regional Innovation Program currently being implemented in these proposed regulations. The basic regulatory framework proposed for this program is summarized below.

    Section-by-Section Analysis Section 312.1—Purpose and Scope of the Regional Innovation Program

    This section sets forth the general purpose of the Regional Innovation Program and provides a brief description of its two sub-programs (i.e., RIS and RIRI Programs). 15 U.S.C. 3722(b), (c). Section 312.1 also informs the public that the Secretary has delegated to EDA the authority to implement and administer the Regional Innovation Program.

    Section 312.2—General Definitions From Public Works and Economic Development Act Regulations Inapplicable to This Part

    This section establishes that the definitions of § 300.3 of chapter III are not applicable to the Regional Innovation Program. Section 300.3 defines terms related to EDA's administration of grant programs authorized by PWEDA. The Regional Innovation Program was established by Stevenson-Wydler, with distinct programmatic and eligibility criteria. Therefore, EDA proposes to include an umbrella Regional Innovation Program definition section that applies to all of part 312 and a separate definition section that applies only to the RIS Program, as described in §§ 312.3 and 312.5 respectively, below.

    Section 312.3—General Definitions

    This section defines terms applicable to the Regional Innovation Program. The definitions are applicable to the RIS Program as well as the RIRI Program.

    Section 312.3 includes terms defined in the Act relevant to the Regional Innovation Program such as Eligible recipient, Federal agency, Federal laboratory, Regional innovation clusters, Secretary, and State.

    This section also includes terms that EDA has previously defined and regularly uses in all of its grant programs, such as In-kind contribution(s) and Recipient. Many of these terms have been adopted almost verbatim from the PWEDA definitions at §§ 300.3 and 314.1 of chapter III; however, the terms FFO, Grant, Investment rate, Project, Real property, and Region have been slightly modified to reference Stevenson-Wydler as opposed to PWEDA, or to increase readability.

    EDA also proposes to adopt the commonly used definitions for the terms Equipment, Federal interest, and Nonprofit organization from the Federal Uniform Administrative Requirements and Cost Principles as set out in 2 CFR part 200 (“Uniform Guidance”). See 200 CFR 200.33, 200.41, and 200.70.

    In addition, EDA establishes new definitions for the terms Economic Development Organization, Public-private partnership, and Science or research park because they are Eligible recipients under the RIS program. See 15 U.S.C. 3722(b)(3). Finally, EDA also establishes new definitions for Regional Innovation Program, RIS Program, and RIRI Program.

    Section 312.4—Purpose and Scope of the Regional Innovation Strategies Program

    This section sets forth the general purpose and scope of the RIS Program as identified in section 27(b) of the Act. 15 U.S.C. 3722(b). Under the RIS Program, EDA will award competitive grants to eligible applicants that build public and private capacity to invent, improve, and commercialize new products and services with the goal of promoting economic growth in the United States.

    Section 312.5—Regional Innovation Strategies Program Definitions

    This section sets forth the definition of Institution of higher education (“IHE”), a term that has a meaning unique to the RIS Program. Under the Act, both for-profit and nonprofit IHEs are eligible recipients under the RIS Program. 15 U.S.C. 3722(b)(3)(D). See analysis of § 312.6, below. This means that the RIS Program cannot use the standard definition of IHE promulgated by the U.S. Department of Education (“ED”) in 20 U.S.C. 1001 and adopted in the Uniform Guidance at 2 CFR 200.55 because that definition includes conditions that the IHE be “public” or “nonprofit.” However, since the ED definition is the standard Government-wide definition, EDA proposes to incorporate as much of the ED definition as possible while omitting language related to “public” or “nonprofit” that conflicts with section 27(b) of the Act. Thus, in EDA's definition of IHE in § 312.5, EDA has duplicated 20 U.S.C. 1001 but with the following deletions: (1) paragraph (4) of 20 U.S.C. 1001(a) that requires an IHE to be “a public or other nonprofit institution”; (2) a cross-reference to paragraph (4) of 20 U.S.C. 1001(a) that appeared in 20 U.S.C. 1001(b)(1); and (3) the reference in 20 U.S.C. 1001(b)(2) to “public or nonprofit private”.

    Section 312.6—Eligible Recipients

    This section identifies those entities eligible to apply for and potentially receive funding under the RIS Program. The list is derived from the definition of “Eligible recipient” in section 27(b)(3) with one proposed clarification. Paragraph (D) of section 27(b)(3) of the Act lists and groups together several types of entities. 15 U.S.C. 3722(b)(3)(D). EDA proposes to separate nonprofit organizations from the other entities to provide needed clarity. Section 27(b)(3)(D)(i) permits grants to for-profit as well as nonprofit institutions of higher education, public-private partnerships, science or research parks, Federal laboratories, and economic development organizations or similar entities. Congress established “nonprofit organizations” as a separate type of entity eligible for an RIS award and did not include the term “nonprofit” as a modifier on the other types of entities that are eligible recipients. Grouping together all of these various types of entities could lead to confusion that “nonprofit” applies to institutions of higher education, public-private partnerships, science or research parks, federal laboratories, and economic development organizations or similar entities, when it does not.

    Both nonprofit organizations and the other entities listed in section 27(b)(3)(D) must still meet the additional eligibility requirement in section 27(b)(3)(D)(ii) of demonstrating that a State or a political subdivision of a State supports the application.

    Consistent with section 27(b), individuals are not eligible recipients.

    Section 312.7—Eligible Project Activities

    This section identifies the project activities that are eligible for potential funding under the RIS Program. The list is derived from section 27(b)(2) with proposed modifications to include three additional eligible activities and four activities that EDA proposes should be ineligible. 15 U.S.C. 3722(b)(2). The list of eligible activities provided by Congress is non-exhaustive because section 27(b)(2) expressly allows discretion for the Secretary to determine appropriate RIS Program activities. EDA therefore has added a catchall to the end of the list of eligible activities that provides “(11) Any other activity determined appropriate by the Assistant Secretary.” To that list, EDA also proposes to add two further activities, “(9) Purchase of equipment, but only to the extent that such equipment is used to support another eligible activity as described in this section (the recipient may be required to secure and record the Federal interest in the equipment)” and “(10) Modifications or renovations of a facility that are necessary to install equipment.”

    With respect to (9) above, at times new innovations require the use of technologies, such as a three-dimensional printer, not readily available to an applicant. As such, EDA proposes to permit the purchase of equipment in limited circumstances. However, because EDA does not believe Congress intended for the RIS Program to primarily fund equipment, EDA proposes to confine the purchase of equipment to only those purchases that are otherwise used to support another eligible project activity described in § 312.7. To protect the Federal interest in such equipment, EDA may require eligible recipients that purchase equipment to provide EDA with a security interest in the equipment that is perfected and placed of record consistent with applicable law (for example, through the execution of a Uniform Commercial Code Financing Statement (UCC-1) or other statement acceptable in form and substance to EDA).

    As a natural extension of including the purchase of equipment as an eligible project activity in § 312.7(a)(9), there are situations when installing the equipment may require some minor modifications or renovations to a facility and this proposed rule makes those activities eligible as well in § 312.7(a)(10).

    On the other hand, EDA proposes to make expenses related to construction (other than minor modifications or renovations of a facility needed to install equipment) and acquisition or improvement of real property ineligible activities. While EDA acknowledges that at times constructing a new facility and/or purchasing real property may support the development of regional innovation clusters, EDA does not believe those specific activities are within the core purposes of the RIS Program as defined by Congress. It is clear that Congress's intent for the RIS Program is to promote actual innovation, not the facilities or places where such activities may take place. There are other grant programs throughout the Federal Government that fund these activities (e.g., PWEDA). Further, as a practical matter, the costs associated with construction and real property acquisition or improvements are more substantial than the other types of eligible activities identified in § 312.7 and consequently, permitting such activities would diminish EDA's ability to award as many grants as possible with its limited appropriations.

    EDA also proposes to make ineligible the use of RIS Program or matching share funds for equity investments. RIS Program awards have supported the creation of mechanisms for attracting, gathering, and deploying investment capital within regional innovation clusters that fill regional gaps in funding for early-stage companies, but RIS Program funds cannot be used to make those investments themselves. Further, there are other grant programs throughout the Federal Government that fund these activities such as the Small Business Administration's Small Business Investment Company program.

    Finally, EDA proposes that lending programs such as providing direct loans or capitalizing a revolving loan fund be ineligible. Providing loans, or permitting grant funds to support lending programs, requires specific Congressional authorization that is not provided in section 27 of the Act.

    Section 312.8—Investment Rates

    This section identifies that the maximum grant rate permitted under section 27(b)(6) of the Act is 50 percent and states that there is no minimum grant rate. 15 U.S.C. 3722(b)(6). The grant rate here represents the percentage of the total Project cost that can be funded with EDA funds.

    Section 312.9—Matching Share Requirements

    This section clarifies that an applicant's matching share requirements may be met by either cash or in-kind contribution(s). Matching share is the difference between the amount of the EDA investment permitted by the Act (see § 312.8), and the total eligible costs of a proposed project. Consistent with EDA's regulations for programs authorized by PWEDA at 13 CFR 301.5, this proposed rule requires an applicant to demonstrate, at the time of application, that matching share is committed to the project, will be available as needed, and is not or will not be conditioned in any way that would conflict with the requirements of the RIS Program.

    EDA expressly retains discretion to determine whether the matching share is adequately documented to ensure that awards comply with the statutorily-established maximum investment rate. Applicants must comply with their own rules (as established in statutes, ordinances, bylaws, or the like) for appropriating or committing organizational funds; in many cases, these rules authorize the organization's governing body (rather than an individual executive) to approve proposed expenditures of cash but permit executives to commit in-kind personnel time based on their authority to manage employees and their workload. Applicants should consult their governance documents for guidance.

    Section 312.10—Application Components

    This section sets forth the minimum information that applicants must provide to EDA to be considered for an RIS Program award, as outlined in section 27(b)(4)(B). 15 U.S.C. 3722(b)(4)(B). This includes information necessary for EDA to identify how the proposed activity will support an existing, or further develop an emerging, regional innovation cluster; how much outside support the cluster will receive; the methodology the applicant will use to get other entities to participate in and benefit from the cluster; the extent to which the cluster will stimulate innovation and positively affect the region's economy; the capacity for applicants to access or contribute to a well-trained workforce; the ability of the recipient to attract additional funds; and the sustainability of the activity. To ensure that requirements remain current, EDA will specify application procedures and materials (such as required standard Federal forms) in each FFO for the RIS Program.

    Section 312.11—Application Evaluation and Selection Criteria

    This section provides notice that EDA will evaluate and select complete applications based on the priorities and requirements set forth in section 27(b), the evaluation criteria and funding priorities identified in the FFO announcement, available funds, competitiveness of the application, and compliance with any other applicable Federal statutes and regulations. EDA proposes this flexible structure to ensure that the agency complies with required statutory elements such as “special considerations” for certain applicants “from regions that contain communities negatively impacted by trade” or who agree “to collaborate with local workforce investment area boards” and at the same time follows Congressional directives outlined in EDA's annual appropriation and supports Administration priorities. 15 U.S.C. 3722(b)(4)(C), (b)(5); see, e.g., H.R. Rep. 114-130 at 7 (May 27, 2015).

    The section also sets forth that EDA will notify applicants as soon as practicable regarding whether their applications are selected for funding and provides notice that there is no appeal process for denied applications.

    Section 312.12—General Terms and Conditions for Investment Assistance

    This section expressly provides that most of the general terms and conditions found in part 302 of title 13 of the Code of Federal Regulations apply to the RIS Program. These terms and conditions either apply Government-wide as mandated by statute or regulation, or are EDA-specific requirements and typically apply to all EDA grant programs, such as those authorized by PWEDA. EDA proposes to exclude those specific paragraphs of part 302 that are irrelevant to the RIS or RIRI Programs, or are unique to PWEDA. The excluded requirements are those related to “Procedures in disaster areas” (§ 302.2); “Project servicing for loans, loan guaranties and Investment Assistance” (§ 302.3); “Inter-governmental review of projects” (§ 302.9); and “Attorneys' and consultants' fees, employment of expediters, and post-employment restriction” (§ 302.10).

    Classification

    Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts. 5 U.S.C. 553(a)(2). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

    Executive Orders No. 12866 and 13563

    This proposed rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (“OMB”), which found that the proposed rule will be a “significant regulatory action” as defined by Executive Orders 12866 and 13563.

    Congressional Review Act

    This proposed rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

    Executive Order No. 13132

    Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this proposed rule does not contain policies that have federalism implications.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number. It has been determined that the PRA does not apply to the proposed rule because the rule does not collect any new information requiring OMB approval. The proposed rule will use the previously approved Standard Form 424 family of forms to collect information relevant to the grant applications.

    The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this proposed rule. These collections of information are necessary for the proper performance and functions of EDA.

    Part or section of this proposed rule Nature of request Form/title/OMB control no. 312.10 All Eligible Applicants must submit required application materials using the Standard Form 424 family of forms SF-424 (4040-0004), SF-424A (4040-0006), SF-424B (4040-0007). List of Subjects in 13 CFR Part 312

    Application requirements, Cluster grants, Financial assistance, Regional innovation, Regional innovation clusters, Regional Innovation Program, Regional Innovation Research and Information Program, Regional Innovation Strategies Program, Research.

    Regulatory Text

    For the reasons set forth in the preamble, EDA proposes to amend title 13, chapter III of the Code of Federal Regulations by adding part 312 to read as follows:

    PART 312—REGIONAL INNOVATION PROGRAM Subpart A—General Provisions Sec. 312.1 Purpose and scope of the Regional Innovation Program. 312.2 General definitions from Public Works and Economic Development Act regulations inapplicable to this part. 312.3 General definitions. Subpart B—Regional Innovation Strategies Program 312.4 Purpose and scope of the Regional Innovation Strategies Program. 312.5 Regional Innovation Strategies Program definitions. 312.6 Eligible recipients. 312.7 Eligible project activities. 312.8 Investment rates. 312.9 Matching share requirements. 312.10 Application components. 312.11 Application evaluation and selection criteria. 312.12 General terms and conditions for investment assistance. Subpart C—Regional Innovation Research and Information Program 312.13 through 312.17 [Reserved] Authority:

    15 U.S.C. 3701 et seq.; Department of Commerce Organization Order 10-4.

    Subpart A—General Provisions.
    § 312.1 Purpose and scope of the Regional Innovation Program.

    The purpose of the Regional Innovation Program is to encourage and support the development of regional innovation strategies. The Regional Innovation Program includes two sub-programs. One is focused on the formation and development of regional innovation clusters and implemented through the Regional Innovation Strategies Program. 15 U.S.C. 3722(b). The second program is focused on best practices, metrics and the collection and dissemination of information related to regional innovation strategies, achieved through the Regional Innovation Research and Information Program. 15 U.S.C. 3722(c). The Secretary has delegated to the Economic Development Administration the authority to implement and administer the Regional Innovation Program.

    § 312.2 General definitions from Public Works and Economic Development Act regulations inapplicable to this part.

    The definitions contained in § 300.3 of this chapter do not apply to this part.

    § 312.3 General definitions.

    As used in this part, the following terms shall have the following meanings:

    Act or Stevenson-Wydler means the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3701 et seq.).

    Assistant Secretary means the Assistant Secretary of Commerce for Economic Development within the Department.

    Department of Commerce, Department, or DOC means the U.S. Department of Commerce.

    Economic Development Organization means an organization whose primary

    purpose is to support the economic development of a community or region.

    EDA means the Economic Development Administration within the Department.

    Eligible applicant means an entity qualified to be an eligible recipient or its authorized representative.

    Eligible recipient means a recipient that meets the requirements of § 312.6.

    Equipment is defined at 2 CFR 200.33.

    Federal agency means any executive agency as defined in 5 U.S.C. 105, and the military departments as defined in 5 U.S.C. 102, as well as any agency of the legislative branch of the Federal Government.

    Federal funding opportunity or FFO means an announcement that EDA publishes during the fiscal year on a Federal Government grants platform or on EDA's Internet Web site at http://www.eda.gov, https://www.eda.gov/oie/, or any successor Web site, that provides the funding amounts, application and programmatic requirements, funding priorities, special circumstances, and other information concerning a specific competitive solicitation under EDA's Regional Innovation Program.

    Federal interest is defined at 2 CFR 200.41, in accordance with 2 CFR 200.316.

    Federal laboratory means any laboratory, any federally funded research and development center, or any center established under section 7 or section 9 of the Act that is owned, leased, or otherwise used by a Federal agency and funded by the Federal Government, whether operated by the government or by a contractor.

    Grant means the financial assistance award of EDA funds to an eligible recipient, under which the Eligible Recipient bears responsibility for meeting a purpose or carrying out an activity authorized under Stevenson-Wydler. See 31 U.S.C. 6304.

    In-kind contribution(s) means non-cash contributions, which may include contributions of space, Equipment, services, and assumptions of debt that are fairly evaluated by EDA and that satisfy applicable Federal Uniform Administrative Requirements and Cost Principles as set out in 2 CFR part 200.

    Indian tribe means an entity on the list of recognized tribes published pursuant to the Federally Recognized Indian Tribe List Act of 1994, as amended (Pub. L. 103-454) (25 U.S.C. 479a et seq.), and any Alaska Native village or Regional Corporation (as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)). This term includes the governing body of an Indian tribe, nonprofit Indian corporation (restricted to Indians), Indian authority, or other nonprofit Indian tribal organization or entity; provided that the Indian tribal organization or entity is wholly owned by, and established for the benefit of, the Indian tribe or Alaska Native village.

    Investment or Investment assistance means a grant entered into by EDA and a recipient.

    Investment rate means, as set forth in § 312.8 of this part, the amount of the EDA investment in a particular project expressed as a percentage of the total project cost.

    Matching share or Local share means the non-EDA funds and any in-kind contribution(s) that are approved by EDA and provided by a recipient or third party as a condition of an investment. The matching share may include funds from another Federal agency only if authorized by a statute that allows such use, which may be determined by EDA's reasonable interpretation of such authority.

    Nonprofit organization is defined at 2 CFR 200.70.

    Office of Innovation and Entrepreneurship or OIE means the office established by 15 U.S.C. 3720.

    Project means the proposed or authorized activity (or activities), the purpose of which fulfills EDA's mission and program requirements as set forth in the Act and this part, and which may be funded in whole or in part by EDA investment assistance.

    Public-private partnership means a relationship formalized by contractual agreement between a public agency and a private-sector entity that reasonably defines the terms of collaboration in the delivery and financing of a public project.

    Real property means any land, whether raw or improved, and includes structures, fixtures, appurtenances, and other permanent improvements, excluding moveable machinery and equipment.

    Recipient means an entity receiving EDA investment assistance, including any successor to the entity approved by EDA in writing. If investment assistance is awarded to more than one recipient under a single award, the recipients are referred to as “co-recipients” and, unless otherwise provided in the terms and conditions of the investment assistance, each co-recipient is jointly and severally liable for fulfilling the terms of the investment assistance.

    Region or Regional means an economic unit of human, natural, technological, capital, or other resources, defined geographically. Geographic areas comprising a region need not be contiguous or defined by political boundaries, but should constitute a cohesive area capable of undertaking self-sustained economic development.

    Regional innovation clusters or RICs means a geographically bounded network of similar, synergistic, or complementary entities that are engaged in or with a particular industry sector and its related sectors; have active channels for business transactions and communication; share specialized infrastructure, labor markets, and services; and leverage the region's unique competitive strengths to stimulate innovation and create jobs.

    Regional Innovation Program means the program enacted by Stevenson-Wydler at 15 U.S.C. 3722.

    Regional Innovation Research and Information Program or RIRI Program means the program authorized by 15 U.S.C. 3722(c).

    Regional Innovation Strategies Program or RIS Program means the cluster grant program authorized by 15 U.S.C. 3722(b).

    Science or research park means a property-based venture that has: Master-planned property and buildings designed primarily for private-public research and development activities, high technology and science-based companies, and research and development support services; a contractual or operational relationship with one or more science- or research-related institutions of higher education or governmental or nonprofit research laboratories; a primary mission to promote research and development through industry partnerships, assisting in the growth of new ventures and promoting innovation-driven economic development; a role in facilitating the transfer of technology and business skills between researchers and industry teams; and a role in promoting technology-led economic development for the community or region in which the park is located.

    Secretary means the Secretary of Commerce.

    State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States.

    United States means all of the States.

    Subpart B—Regional Innovation Strategies Program
    § 312.4 Purpose and scope of the Regional Innovation Strategies Program.

    Under the RIS Program, EDA makes grants on a competitive basis to eligible applicants to foster connected, innovation-centric economic regions that support commercialization and entrepreneurship. The grants are intended to build public and private capacity to invent and improve products and services and to bring those products and services to market through a process often referred to as technology commercialization, as demonstrated by methodologically sound metrics for output and outcome.

    § 312.5 Regional Innovation Strategies Program definitions.

    In addition to the defined terms set forth in subpart A, the following term applies specifically to the RIS Program:

    Institution of higher education means:

    (1) An educational institution in any State that—

    (i) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of 20 U.S.C. 1091(d);

    (ii) Is legally authorized within such State to provide a program of education beyond secondary education;

    (iii) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary of Education; and

    (iv) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary of Education for the granting of preaccreditation status, and the Secretary of Education has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

    (2) Additional institutions included. For purposes of this subpart, the term Institution of higher education also includes—

    (i) Any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provisions of paragraphs (1)(i), (ii), and (iv) of this definition; and

    (ii) An educational institution in any State that, in lieu of the requirement in paragraph (1)(i) of this definition, admits as regular students individuals—

    (A) Who are beyond the age of compulsory school attendance in the State in which the institution is located; or

    (B) Who will be dually or concurrently enrolled in the institution and a secondary school.

    § 312.6 Eligible recipients.

    A recipient eligible for investment assistance includes:

    (a) A State;

    (b) An Indian tribe;

    (c) A city or other political subdivision of a State;

    (d) An entity that is a nonprofit organization and whose application for funding under the RIS Program is supported by a State or a political subdivision of a State;

    (e) An entity that is an institution of higher education, a public-private partnership, a science or research park, a Federal laboratory, or an economic development organization or similar entity, and whose application for funding under the RIS Program is supported by a State or a political subdivision of a State; or

    (f) A consortium of any of the entities described in paragraphs (a) through (e) of this section.

    § 312.7 Eligible project activities.

    (a) Activities eligible for a RIS Program grant include:

    (1) Feasibility studies;

    (2) Planning activities;

    (3) Technical assistance;

    (4) Developing or strengthening communication and collaboration between and among participants of a regional innovation cluster;

    (5) Attracting additional participants to a regional innovation cluster;

    (6) Facilitating market development of products and services of a regional innovation cluster, including through demonstration, deployment, technology transfer, and commercialization activities;

    (7) Developing relationships between a regional innovation cluster and entities or clusters in other regions;

    (8) Interacting with the public and State and local governments to meet the goals of the regional innovation cluster;

    (9) Purchase of equipment, but only to the extent that such equipment is used to support another eligible activity as described in this section (the recipient may be required to secure and record the Federal interest in the equipment);

    (10) Modifications or renovations of a facility that are necessary to install equipment; and

    (11) Any other activity determined appropriate by the Assistant Secretary.

    (b) An ineligible activity includes, but is not limited to:

    (1) Use of Federal funds or matching share for equity investments;

    (2) Acquisition or improvement of real property;

    (3) Construction except to the extent provided in paragraph (a)(10) of this section; and

    (4) Lending programs, such as a direct loan program or capitalizing a revolving loan fund.

    § 312.8 Investment rates.

    (a) Minimum investment rate. There is no minimum investment rate for a project.

    (b) Maximum investment rate. The maximum investment rate for a project shall not exceed 50 percent.

    § 312.9 Matching share requirements.

    The required matching share of a project's eligible costs may consist of cash or in-kind contribution(s) whose value can be readily determined, verified, and justified. Applicants must show at the time of application that the matching share is committed to the project, will be available as needed, and is not or will not be conditioned or encumbered in any way that would preclude its use consistent with the requirements of the investment assistance. EDA shall determine at its sole discretion whether the matching share documentation adequately addresses the requirements of this section.

    § 312.10 Application components.

    In addition to the criteria set forth in the FFO, to be considered for a RIS Program grant, eligible applicants must provide the following information:

    (a) A description of the regional innovation cluster supported by the proposed activity;

    (b) The extent to which the regional innovation cluster is supported by the private sector, State and local units of government, and other relevant stakeholders;

    (c) The methods that participants in the regional innovation cluster will use to encourage and solicit participation by all types of entities that might benefit from participation, including newly formed entities and rival existing participants;

    (d) The extent to which the regional innovation cluster is likely to stimulate innovation and have a positive effect on regional economic growth and development;

    (e) The capacity of participants in the regional innovation cluster to access, or contribute to, a well-trained workforce;

    (f) The ability of participants in the regional innovation cluster to attract

    additional funds to support the cluster with non-Federal funds; and

    (g) The likelihood that participants in the regional innovation cluster will be able to sustain activities after the grant expires.

    § 312.11 Application evaluation and selection criteria.

    (a) EDA will evaluate and select complete applications in accordance with the evaluation criteria, funding priority considerations, availability of funding, competitiveness of the application, and requirements set forth in section 27(b) of Stevenson-Wydler, the FFO, and other applicable Federal statutes and regulations. All awards are subject to the availability of funds.

    (b) EDA will endeavor to notify applicants as soon as practicable regarding whether their applications are selected for funding.

    (c) Stevenson-Wydler does not require nor does EDA provide an appeal process for denial of applications for EDA investment assistance.

    § 312.12 General terms and conditions for investment assistance.

    RIS Program grants are subject to all requirements contained in part 302 of this chapter, except §§ 302.2, 302.3, 302.9, and 302.10.

    Subpart C—Regional Innovation Research and Information Program
    §§ 312.13 through 312.17 [Reserved]
    Dated: September 6, 2016. Roy K.J. Williams, Assistant Secretary for Economic Development.
    [FR Doc. 2016-22286 Filed 9-20-16; 8:45 am] BILLING CODE 3510-24-P
    SUSQUEHANNA RIVER BASIN COMMISSION 18 CFR Parts 806 and 808 Review and Approval of Projects AGENCY:

    Susquehanna River Basin Commission.

    ACTION:

    Notice of proposed rulemaking; notice of public hearings.

    SUMMARY:

    This document contains proposed rules that would amend the regulations of the Susquehanna River Basin Commission (Commission) to clarify application requirements and standards for review of projects, amend the rules dealing with the mitigation of consumptive uses, add a subpart to provide for registration of grandfathered projects, and revise requirements dealing with hearings and enforcement actions. These rules are designed to enhance the Commission's existing authorities to manage the water resources of the basin and add regulatory clarity.

    DATES:

    In addition, the Commission will be holding two informational webinars explaining the proposed rulemaking on October 11, 2016, and October 17, 2016. Instructions for registration for the webinars will be posted on the Commission's Web site. Comments on the proposed rulemaking may be submitted to the Commission on or before January 30, 2017. The Commission has scheduled four public hearings on the proposed rulemaking:

    1. November 3, 2016, 2 p.m. to 5 p.m. or at the conclusion of public testimony, whichever is sooner; Harrisburg, PA.

    2. November 9, 2016, 7 p.m. to 9 p.m. or at the conclusion of public testimony, whichever is sooner; Binghamton, NY.

    3. November 10, 2016, 7 p.m. to 9 p.m. or at the conclusion of public testimony, whichever is sooner; Williamsport, PA.

    4. December 8, 2016, 1 p.m. to 3 p.m. or at the conclusion of public testimony, whichever is sooner; Annapolis, MD.

    The locations of the public hearings are listed in the ADDRESSES section of this document.

    ADDRESSES:

    Comments may be mailed to: Jason E. Oyler, Esq., General Counsel, Susquehanna River Basin Commission, 4423 N. Front Street, Harrisburg, PA 17110-1788, or by email to [email protected] The public hearings locations are:

    1. Harrisburg—Pennsylvania State Capitol (East Wing, Room 8E-B), Commonwealth Avenue, Harrisburg, PA 17120.

    2. Binghamton—DoubleTree by Hilton Hotel Binghamton (South Riverside Room), 225 Water Street, Binghamton, NY 13901.

    3. Williamsport—Holiday Inn Williamsport (Gallery Room), 100 Pine Street, Williamsport, PA 17701.

    4. Annapolis—Loews Annapolis Hotel (Powerhouse-Point Lookout), 126 West Street, Annapolis, MD 21401.

    Those wishing to testify are asked to notify the Commission in advance, if possible, at the regular or electronic addresses given below.

    FOR FURTHER INFORMATION CONTACT:

    Jason E. Oyler, Esq., General Counsel, telephone: 717-238-0423, ext. 1312; fax: 717-238-2436; email: [email protected] Also, for further information on the proposed rulemaking, visit the Commission's Web site at http://www.srbc.net.

    SUPPLEMENTARY INFORMATION:

    The Commission's regulations have not undergone a thorough review since the last comprehensive rulemaking in 2006. Many of these regulations remain unchanged. However, since initial implementation, the Commission recognizes the need for clarity in some sections and statement of procedure in others. These changes are designed to bring clarity and certainty to the regulated community. This rulemaking reflects the efforts of a comprehensive internal review by the Commission staff and review by the Commission's member jurisdictions. The rulemaking centers on a few key areas of the regulations: Project review, consumptive use mitigation, registration of grandfathered projects, and administrative procedures. The Commission proposed this rulemaking to clarify application requirements and standards for review of projects, amend the rules dealing with the mitigation of consumptive uses, add a subpart to provide for registration of grandfathered projects, and revise requirements dealing with hearings and enforcement actions. Because the concept is a new addition to the regulations, the Commission believes that an explanation for the rationale for the proposed rules relating to the registration of grandfathered projects would be helpful for the public.

    Sources and Activities That Predate Regulations

    The Commission's regulations provide that certain withdrawals and pre-compact consumptive uses that are in excess of the Commission's regulatory thresholds do not require Commission approval under § 806.4(a) if those sources predated regulations, provided there is no environmental harm. This exemption from review and approval is commonly referred to as “grandfathering.” Generally, pre-compact consumptive uses initiated prior to January 23, 1971, groundwater withdrawals initiated prior to July 13, 1978, and surface water withdrawals initiated prior to November 11, 1995, are considered “grandfathered” and do not need to apply for a regulatory approval by the Commission. The Commission's current regulations provide several mechanisms by which a grandfathered project must apply for regulatory approval, including a change in the nature of the use, change of ownership, an increase in the quantity of the withdrawal or use, or adding a new source.

    However, in enacting the Compact that created the Commission, Congress and the participating states declared that . . .

    the conservation, utilization, development, management and control of the water resources of the Susquehanna River Basin under comprehensive multiple purpose planning will produce the greatest benefits and produce the most efficient service in the public interest. Compact Preamble Sect 1—emphasis added. The Commission's “Comprehensive Plan for the Water Resources of the Susquehanna Basin” contains an objective to wisely manage the water resources of the Basin to assure short-term resource availability and long-term balance between healthy ecosystems and economic viability (SRBC Comprehensive Plan, 2013). The desired result of one of the key water resource needs, identified as Sustainable Water Development, is to regulate and plan for water resources development in a manner that maintains economic viability, protects instream users, and ensures ecological diversity; and meets immediate and future needs of the people of the basin for domestic, municipal, commercial, agricultural and industrial water supply and recreational activities.

    As part of this objective, the Commission recently completed a major effort to characterize water use and availability for the Susquehanna River Basin. The Cumulative Water Use and Availability Study (CWUAS) represents the most comprehensive analysis to date regarding water availability. The Commission is increasingly concerned about the availability of water to meet immediate and future needs as water is needed to satisfy the continuing prospect of growing population and increasing demands for drinking water, freshwater inflow to the Chesapeake Bay, power generation, industrial activity, commercial uses, recreation and ecological diversity. Water resources are neither limitless nor equally distributed across the basin, and in some areas the demand for and use of water resources may be approaching or exceeding the sustainable limit.

    As part of the CWUAS, the Commission developed a comprehensive water use database by integrating water use records from the Commission, and its member jurisdictions of New York, Pennsylvania, and Maryland in an unprecedented compilation effort. Compiling accurate water use data is a common challenge for water resource agencies, even recognizing advances in accessing data records through electronic reporting for both the Commission and our member states. The study shows water availability in nearly 1 in 10 watersheds is sufficiently compromised to warrant additional analysis and improved knowledge of patterns of withdrawal and use.

    The CWUAS also reveals the limitations of the currently available water use data. While these data include records of regulated public water supply withdrawals for all states, withdrawals for the remaining variety of self-supplied uses are commonly lacking with the exception of those projects regulated by the Commission. Coverage for unregulated withdrawals, including grandfathered projects, is provided through state registration programs and varies widely in data quality and completeness among the member jurisdictions. For the most part, data for consumptive use not regulated by the Commission are absent altogether.

    At the time of its formation and adoption of its initial regulations, neither the Commission nor its member jurisdictions conducted any inventory of existing water users, their sources or the quantity of existing water use. Grandfathered water withdrawals and use are clearly factors in the determination of sustainable water availability. The Commission's analysis estimates a total of 760 grandfathered projects with an estimated water use of 970 million gallons per day, which is approximately equal to the total existing regulated consumptive use approved by the Commission. With such large water quantities in question, it is obvious that some of the grandfathered projects are among the largest users of basin waters. Therefore, appropriate regulation and comprehensive planning for the use of the water resources are seriously hampered without accurate and reliable data regarding the quantity of the grandfathered uses and withdrawals. This is even more critical for areas identified as potentially stressed, water challenged or otherwise having limited water availability.

    While our member jurisdictions have made efforts to collect water withdrawal data, and the Commission uses that data as available, our member jurisdictions do not comprehensively register consumptive water use. In addition, they do not have comprehensive historic data for legacy water users to effectively determine the quantity of water withdrawn prior to 1995 or the water consumptively used prior to 1971. This lack of comprehensive and reliable data hampers the Commission by creating significant gaps in our knowledge and data of water withdrawals and water use in the basin, which in turn hinders our ability to comprehensively manage the water resources of the basin and fulfill our regulatory and planning functions.

    It is, therefore, appropriate for the Commission to act to address this knowledge gap as no other jurisdiction is solely capable of insuring the effectuation of the comprehensive plan. In these regulations the Commission is proposing a mechanism for acquiring accurate water use and withdrawal information for grandfathered projects through a required registration program. It is imperative that we have no misrepresentations about the sustainability of our water supply so that sound water resource decisions can be made for the benefit of all the basin's users. Grandfathered uses and withdrawals represent a longstanding gap in knowledge and, as such, have increasingly become a water management issue in the Commission's regulation and planning for water resources development.

    Registration of grandfathered uses and withdrawals will definitively answer questions about the number of grandfathered projects, the locations of their sources, how much water they are withdrawing and from which water bodies and aquifers, and how much of that water they are using consumptively. In short, it will allow water resource decisions to be made with more certainty and confidence. The registration requirements proposed do not require review and approval of dockets under § 806.4 and do not add any new pathways for a grandfathered project to be subject to review and approval if it registers in accordance with the proposed regulation.

    The Commission expects the registration of grandfathered uses will achieve a number of crucial goals to allow better management of basin resources. The Commission will receive more consistent and complete data than what can be obtained through voluntary registration programs, such as peak quantities, patterns of usage and accurate locational data for withdrawals and uses. The data required for registration is more easily attainable data from the most recent five years, as opposed to historical data. This data will be more recent and based on more accurate and reliable metering and measurement devices. Registration will eliminate legacy issues by closing the knowledge gap about grandfathered withdrawals from and usage of the water resources of the basin. The information obtained through the registration will allow the Commission staff to conduct thorough water availability analyses.

    Registration will also provide more direct benefits to the grandfathered projects by providing the Commission with complete, contemporary withdrawal and usage data that can be utilized by the Commission in evaluating new withdrawals or consumptive uses in the watersheds where the grandfathered projects operate and allow the Commission to better prevent impacts and interference to the operations of grandfathered projects by newer projects. Registration will also provide unambiguous determinations concerning pre-regulation quantities of withdrawals and consumptive uses in the basin for both project sponsors and the Commission, providing much more certainty with regards to how a grandfathered project may operate and retain their existing exempt status and avoid the full project review and approval process. As such, project sponsors can plan and anticipate when they might fall under the Commission's jurisdiction and avoid situations where they unknowingly could fall into noncompliance, as currently happens.

    Registration also should provide for ongoing information concerning contemporary water withdrawals and uses at grandfathered projects, to meet Commission management goals of the Comprehensive Plan, including:

    • Supporting water conservation measures through monitoring and reporting data;

    • Making informed regulatory decisions about cumulative effect on other uses/withdrawals, including analyses for low flow protection (passby flows) and consumptive use mitigation;

    • Projecting future water availability to support and inform development decisions, including siting of new facilities critical for water supply, energy development and industrial needs; and

    • Identifying critical water planning areas where potential shortages due to drought are projected or intense competition among water users exists.

    Registration of grandfathered projects allows the Commission to continue to allow those projects to receive the exemption from the Commission's review and approval under § 806.4 but also fulfills the Commission's need to have accurate, current and reliable data on the amount of the water withdrawals and consumptive use of grandfathered projects to use in the Commission's management decisions for the water resources of the basin. Registration is a one-time event that allows a grandfathered project to continue to operate under the exemption from the Commission's regulations for review and approval of projects, and the only ongoing obligation of project registration is to periodically report withdrawal and usage data. Registration is not review and approval of the project and the proposed rulemaking does not eliminate the grandfathering exemption for projects that register. This means a grandfathered project will not need to meet the requirements and standards set forth in part 806, subparts A through D, which include making an application to Commission, conducting an aquifer test for groundwater withdrawals, evaluation for the sustainability of water withdrawals, evaluation of impact on surface water features, wetlands, other water supplies and wells, establishment of passby flows to protect surface waters, imposition of mitigation for withdrawals or consumptive use, or imposition of conditions or limits on the grandfathered withdrawal or consumptive use. In addition, the Commission has designed the registration to be as simple and accessible as possible to greatly minimize costs, and/or eliminate the need for a grandfathered project to engage a consultant to complete the registration process.

    New Subpart E and Revisions to 18 CFR 806.4—Registration of Grandfathered Projects

    New subpart E sets forth the rules related to registration of grandfathered projects.

    Section 806.40 defines the grandfathered projects within the scope of the regulations and registration requirement.

    Section 806.41 provides that grandfathered projects must register within a two-year window or they become subject to review and approval by the Commission in accordance with the Commission's project review regulations and standards. The proposal also contains corresponding changes in § 806.4(a)(1)(iii) and (a)(2)(iv) to clearly provide when a project with some grandfathered aspect or element is subject to review and approval.

    The proposed regulations in §§ 806.40(b) and 806.41(c) do not protect grandfathered projects that can be shown to have clearly lost grandfathered status under the regulations in effect at the time the relevant action took place. For example, a grandfathered project that underwent a change of ownership, but did not seek review and approval as required by the §§ 806.4 and 806.6, is not eligible to register and will be required to submit an application for review and approval of the project.

    Other projects that have a grandfathered aspect, but that do not withdraw or use water at a jurisdictional threshold to qualify as a grandfathered project under § 806.40, are not eligible to register and will be subject to review and approval if those projects ever withdraw or consumptively use water above the jurisdictional thresholds, pursuant to §§ 806.4(a)(1)(iii)(B), 806.4(a)(2)(iv)(B), and 806.40(c).

    Paragraph 806.41(e) provides that the Commission may establish fees in accordance with § 806.35. The Commission will establish any registration fee simultaneously at the time of the adoption of a final rule. Because the amount of any fee will likely be of interest to the public, the Commission, in conjunction with this proposed rulemaking, is proposing a staggered fee for registration. Section 806.41(a) establishes a two-year window during which grandfathered projects must register. The Commission proposes that project sponsors that submit their registration within the first 6 months of that two-year registration period will pay no fee. During the next 6 months of the registration period, the fee will be $500. During the last year of the registration period, the fee will be $1,000. The registration fee is a one-time fee. By providing a no fee option during the first six months of the registration period, the Commission intends to provide relief for project sponsors that may be concerned about payment of a registration fee and to incentivize project sponsors to register sooner which will lead to an earlier submission of the data that the Commission is seeking through the registration process.

    Section 806.42 outlines the primary information needs of the Commission for registration of withdrawals and consumptive uses. Because of the problems frequently encountered with producing reliable historical data, paragraph 806.42(a)(6) requests the most recent five years of quantity data for a project's withdrawals and consumptive use for at least the past five calendar years.

    Section 806.43 provides that the Commission shall review the project's current metering and monitoring for its grandfathered withdrawals and consumptive uses. The Commission may require the project to follow a metering and monitoring plan to ensure that withdrawal and use quantities are accurate and reliable. This section also provides for ongoing reporting of quantities for grandfathered withdrawals and consumptive uses. The Commission may accept quantities reported under the requirements of the applicable member jurisdiction in lieu of additional monitoring data. This information is vital to the Commission in its ongoing evaluation of the water resources of the basin and will be used in revising the Commission's Comprehensive Plan, in its ongoing evaluation of cumulative water use in the basin and to provide data to assess and evaluate impacts of new projects seeking review and approval by the Commission.

    Sections 806.44 and 806.45 provide a process for the determination of grandfathered quantities for withdrawals and consumptive uses. This determination will be made by the Executive Director taking into account the most reliable data. An increase above this amount would require review and approval under §§ 806.4(a)(1)(iii)(A) and 806.4(a)(2)(iv)(A). A project will be able to appeal this determination to the Commission. Any hearing conducted will be done in accordance with the Commission's appeal procedures in Part 808.

    Project Review Application Procedures—18 CFR Subpart B

    Section 806.11 is revised to include a specific reference to § 801.12(c)(2), noting that preliminary consultations, or pre-application meetings, are encouraged but not mandatory except for electric power generation projects.

    Section 806.12 is revised to clarify when project sponsors will perform a constant-rate aquifer test and to clarify that reviews of aquifer test plan submittals are subject to termination of review under § 806.16.

    Section 806.14 detailing the contents of applications to the Commission is rewritten. The new section as proposed better aligns to the actual items sought in the Commission's applications, as well as provides required items specific to each type of approval (i.e., groundwater withdrawal, surface water withdrawal, consumptive use). The proposed regulation includes new requirements specific to projects such as mine and construction dewatering, water resources remediation, and gravity-drained acid mine drainage (AMD) remediation facilities to align with the newly proposed standards for these types of projects under § 806.23(b)(5). The proposal also includes specific requirements for renewal applications.

    This section as rewritten retains the requirement for an alternatives analysis for new projects, if prompted by a request from the Commission. However, for new surface water withdrawal projects, an alternatives analysis must be performed in settings with a drainage area of 50 miles square or less, or in a waterway with exceptional water quality.

    Section 806.15 regarding notice requirements for applications is revised to provide notice to appropriate county agencies, removing the specific reference to county planning agencies. Appropriate county agencies include the county governing body, county planning agencies and county conservation districts. Section 806.15(b)(3) is added to allow the Commission or Executive Director to allow notification of property owners by other means where the property is served by a public water supply.

    Standards for Review and Approval—18 CFR Subpart C

    Section 806.21 is revised to mention that a project must be “feasible” to align it with the standard presently used for projects during review to determine that they are feasible from both a financial and engineering perspective.

    Section 806.22 regarding standards for the consumptive use of water is revised. The proposed revisions lower the 90-day standard for consumptive use mitigation to 45 days and require a mitigation plan that can have several elements and encourages blended mitigation options. The purpose of these changes is to reduce the barriers to project sponsors finding their own mitigation and to correspondingly reduce the number of projects paying the consumptive use mitigation fee. Analysis of the past 100 plus years of river flow records show that the overwhelming majority of low flow/drought events in the Basin are adequately covered by a 45-day consumptive use mitigation standard.

    Section 806.22(b) is also revised to clarify that when a project is subject to review and approval and also has an element of pre-compact consumptive use, the project sponsor will be required to provide mitigation going forward for this consumptive use if the project is located in a water critical area. The location of a project in a water critical area will also be a factor used by the Commission in determining the manner of acceptable mitigation under paragraph (c). A definition of water critical area is included in § 806.3 that will rely on both the existing member jurisdiction designations and the ongoing efforts by the Commission to identify areas where water resources are limited or the demand for water has exceeded or is close to exceeding the sustainable supply. Any action to identify a water critical area will be taken by a separate action of the Commission and may be subject to a public hearing under the revisions to § 808.1(b)(4).

    Paragraph 806.22(e)(1) is amended to allow a project sourced by more than one public water supply to be eligible for an Approval by Rule for consumptive use as long as the public water supplies are the sole source of water for the project. New § 806.22(e)(2) and (3) were added so both the Approvals by Rule in paragraph (e) and (f) had matching procedures. The time frame for making notice was extended to 20 days in § 806.22(f)(3) to match the changes previously made to § 806.15, related to notice, during the last Commission rulemaking.

    Section 806.23 related to standards for withdrawals is amended to include elements that presently form the basis of conditions to approvals for withdrawals. The proposal clarifies that the Commission can establish conditions based on the project's effect on groundwater and surface water availability, including cumulative uses and effects on wetlands. This section is clarified to expressly include the Commission's practice of establishing and requiring a total system limit on projects.

    A new § 806.23(b)(5) is added to provide special review provisions for projects consisting of mine dewatering, water resources remediation, and gravity-drained AMD facilities. Because the nature of these types of facilities is fundamentally different from the other withdrawal projects that come before the Commission and because they are heavily regulated by our member jurisdictions, the Commission may appropriately limit consideration of adverse impacts of these projects on groundwater availability, causing permanent loss of aquifer storage and lowering of groundwater levels.

    Hearings and Enforcement Actions—Part 808

    Section 808.1 is revised. The revised section in paragraph (a) identifies those actions that must have a public hearing pursuant to the Susquehanna River Basin Compact. Paragraph (b) outlines all other instances when the Commission may hold a hearing. No changes are contemplated to how the Commission currently conducts its hearings. Paragraphs (c) through (h) are revised to both update the regulations and also to reflect the Commission's current public hearing procedures.

    Section 808.2 is revised to amend the scope and procedure for administrative appeals to the Commission. The non-mandatory appeal language is removed and paragraph (a) is revised to provide a mandatory appeal to the Commission of a final action or decision made by the Executive Director, including a non-exclusive list of appealable actions. Where the Commission itself takes a final action, including actions or decisions it makes on appeal of Executive Director actions, those decisions c must be appealed to the appropriate federal district court in accordance with the provisions of section 3.10 of the Compact. This section also clarifies that the Commission will determine the manner in which it will hear an appeal, including whether a hearing is granted or whether the issue will be decided through submission of briefs.

    Section 808.11 is revised to expressly recognize directives issued from Commission staff.

    Section 808.14 is revised to provide the Executive Director broader authority to issue compliance orders. These orders would be appealable to the Commission. Paragraph (e) is added to expressly recognize Consent Orders and Agreements in the regulations. These agreements are vital to the Commission in fulfilling its compliance and enforcement obligations under the Compact and allow for a constructive resolution of most enforcement actions.

    Section 808.15 is revised to allow the Executive Director to determine the appropriateness of a civil penalty in the first instance in a show cause proceeding. Any decision of the Executive Director is appealable to the Commission. Paragraph (c) is added to reflect the Commission's intent that any finding regarding the imposition of a civil penalty by the Executive Director shall be based on the relevant policies and guidelines adopted by the Commission, as well as the relevant law and facts and information presented as a part of the show cause proceeding.

    Section 808.16 regarding civil penalty criteria is revised to be consistent with other changes in this proposed rulemaking, as well as add a new factor regarding the punitive effect of a civil penalty on a violator.

    Section 808.17 is revised to be consistent with other changes in the proposed rulemaking.

    Section 808.18 is revised to allow the Executive Director to enter into settlement agreements to resolve enforcement actions. Currently all settlement agreements must be brought to the Commission for approval at the Commission's quarterly meeting with the exception of settlements under $10,000 pursuant to Commission Resolution 2014-15. The revision provides greater authority for the Executive Director to approve settlement agreements, but retains the ability of the Commission to require certain types of settlements to be submitted for the Commission's approval through adoption of a Resolution.

    Miscellaneous Changes

    Section 806.1 is revised to include diversions within the scope of Part 806, which was an omission. The address of the Commission is also updated.

    Section 806.3 related to definitions is revised. The definition of facility is revised to include consumptive use, which was an omission. The definition of production fluids is revised to include other fluids associated with the development of natural gas resources. The Commission routinely receives questions regarding other fluids, such as stormwater captured and stored in a drilling rig apparatus, and what rules apply to such water. The Commission is electing to treat all such water as a production fluid to ensure it is accounted for. A definition of wetland is added that mirrors the definition used by the U.S. Army Corps of Engineers for its regulatory program.

    Section 806.4 related to projects requiring review and approval is revised, in addition to the changes discussed regarding new subpart E. Paragraph (a) is revised to clarify that aquifer testing pursuant to § 806.12 is not a project governed by § 806.4. Paragraph (a)(2), related to the regulation of withdrawals, is revised to clarify that a project includes all of its sources and to include a reference to the general project review standards in § 806.21.

    A new paragraph (a)(3)(vii) is added to allow flowback and production fluids into the basin for in-basin treatment or disposal. The Commission does not want its regulations to be a disincentive to treatment of flowback where the activity is conducted in accordance with the environmental standards and requirements of its member jurisdictions.

    Section 806.30 related to monitoring is revised and clarified. The revisions provide that measuring, metering or monitoring devices must be installed per the specifications and recommendations of the device's manufacturer. The revisions clarify that the Commission may require measurement of groundwater levels in wells other than production wells and may require other monitoring for environmental impacts.

    Section 806.31 related to the term of approvals is revised to provide that if a project sponsor submits an application one month prior to the expiration of an ABR or NOI approval, the project sponsor may continue to operate under the expired approval while the Commission reviews the application. In the Commission's experience, the six month time frame currently in the regulation and still applicable to existing Commission docket approvals is longer than necessary for ABR approvals.

    Transition Issues

    The Commission is contemplating that all changes proposed in this rulemaking will take effect immediately upon publication in the Federal Register, with the exception of the adoption of Subpart E (related to registration of grandfathered projects) and the corresponding changes to § 806.4(a)(1)(iii) and (a)(2)(iv), which would be effective six months after the date of publication in the Federal Register.

    List of Subjects in 18 CFR Parts 806 and 808

    Administrative practice and procedure, Water resources.

    Accordingly, for the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR parts 806 and 808 as follows:

    PART 806—REVIEW AND APPROVAL OF PROJECTS 1. The authority citation for part 806 continues to read as follows: Authority:

    Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Public Law 91-575, 84 Stat. 1509 et seq.

    2. Amend § 806.1 by revising paragraphs (a) and (f) to read as follows:
    § 806.1 Scope.

    (a) This part establishes the scope and procedures for review and approval of projects under section 3.10 of the Susquehanna River Basin Compact, Public Law 91-575, 84 Stat. 1509 et seq., (the compact) and establishes special standards under section 3.4(2) of the compact governing water withdrawals, the consumptive use of water, and diversions. The special standards established pursuant to section 3.4(2) shall be applicable to all water withdrawals and consumptive uses in accordance with the terms of those standards, irrespective of whether such withdrawals and uses are also subject to project review under section 3.10. This part, and every other part of 18 CFR chapter VIII, shall also be incorporated into and made a part of the comprehensive plan.

    (f) Any Commission forms or documents referenced in this part may be obtained from the Commission at 4423 North Front Street, Harrisburg, PA 17110, or from the Commission's Web site at http://www.srbc.net.

    3. In § 806.3: a. Revise the definitions for “Facility” and “Production fluids”; and b. Add, in alphabetical order, definitions for “Water critical area” and “Wetland”.

    The revisions and additions read as follows:

    § 806.3 Definitions.

    Facility. Any real or personal property, within or without the basin, and improvements thereof or thereon, and any and all rights of way, water, water rights, plants, structures, machinery, and equipment acquired, constructed, operated, or maintained for the beneficial use of water resources or related land uses or otherwise including, without limiting the generality of the foregoing, any and all things and appurtenances necessary, useful, or convenient for the control, collection, storage, withdrawal, diversion, consumptive use, release, treatment, transmission, sale, or exchange of water; or for navigation thereon, or the development and use of hydroelectric energy and power, and public recreational facilities; of the propagation of fish and wildlife; or to conserve and protect the water resources of the basin or any existing or future water supply source, or to facilitate any other uses of any of them.

    Production fluids. Water or formation fluids recovered at the wellhead of a producing hydrocarbon well as a byproduct of the production activity or other fluids associated with the development of natural gas resources.

    Water critical area. A watershed or sub-watershed identified by the Commission where there are significantly limited water resources, where existing or future demand for water exceeds or has the potential to exceed the safe yield of available surface water and/or groundwater resources, or where the area has been identified or designated by a member jurisdiction as requiring more intensive water planning.

    Wetlands. Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

    4. Amend § 806.4 by revising paragraphs (a) introductory text, paragraph (a)(1)(iii), (a)(2) introductory text, and paragraph (a)(2)(iv), and adding paragraph (a)(3)(vii) to read as follows:
    § 806.4 Projects requiring review and approval.

    (a) Except for activities relating to site evaluation, to aquifer testing under § 806.12 or to those activities authorized under § 806.34, no person shall undertake any of the following projects without prior review and approval by the Commission. The project sponsor shall submit an application in accordance with subpart B of this part and shall be subject to the applicable standards in subpart C of this part.

    (1) * * *

    (iii) With respect to projects that existed prior to January 23, 1971, any project:

    (A) Registered in accordance with subpart E of this part that increases its consumptive use by any amount over the quantity determined under § 806.44;

    (B) Increasing its consumptive use to an average of 20,000 gpd or more in any consecutive 30-day period; or

    (C) That fails to register its consumptive use in accordance with subpart E of this part.

    (2) Withdrawals. Any project, including all of its sources, described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in §§ 806.21 and 806.23. Hydroelectric projects, except to the extent that such projects involve a withdrawal, shall be exempt from the requirements of this section regarding withdrawals; provided, however, that nothing in this paragraph shall be construed as exempting hydroelectric projects from review and approval under any other category of project requiring review and approval as set forth in this section, § 806.5, or part 801 of this chapter. The taking or removal of water by a public water supplier indirectly through another public water supply system or another water user's facilities shall constitute a withdrawal hereunder.

    (iv) With respect to groundwater projects that existed prior to July 13, 1978, surface water projects that existed prior to November 11, 1995, or projects that existed prior to January 1, 2007, with multiple sources involving a withdrawal of a consecutive 30-day average of 100,000 gpd or more that did not require Commission review and approval, any project:

    (A) Registered in accordance with Subpart E that increases its withdrawal by any amount over the quantity determined under § 806.44;

    (B) Increasing its withdrawal individually or cumulatively from all sources to an average of 100,000 gpd or more in any consecutive 30-day period; or

    (C) That fails to register its withdrawals in accordance with subpart E.

    (3) * * *

    (vii) The diversion of any flowback or production fluids from hydrocarbon development projects located outside the basin to an in-basin treatment or disposal facility authorized under separate government approval to accept flowback or production fluids, shall not be subject to separate review and approval as a diversion under this paragraph, provided the fluids are handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.

    5. Amend § 806.11 by revising paragraph (b) to read as follows:
    § 806.11 Preliminary consultations.

    (b) Except for project sponsors of electric power generation projects under § 801.12(c)(2) of this chapter, preliminary consultation is optional for the project sponsor (except with respect to aquifer test plans under § 806.12) but shall not relieve the sponsor from complying with the requirements of the compact or with this part.

    6. Amend § 806.12 by revising paragraph (a) and adding paragraph (f) to read as follows:
    § 806.12 Constant-rate aquifer testing.

    (a) Prior to submission of an application pursuant to § 806.13, a project sponsor seeking approval for a new groundwater withdrawal, a renewal of an expiring groundwater withdrawal, or an increase of a groundwater withdrawal shall perform a constant-rate aquifer test in accordance with this section.

    (f) Review of submittals under § 806.12 may be terminated by the Commission in accordance with the procedures set forth in § 806.16.

    7. Revise § 806.14 to read as follows:
    § 806.14 Contents of application.

    (a) Applications for a new project or a major modification to an existing approved project shall include, but not be limited to, the following information and, where applicable, shall be subject to the requirements in paragraph (b) of this section and submitted on forms and in the manner prescribed by the Commission.

    (1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.

    (2) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters, the project location displayed on a map with a 7.5-minute USGS topographic base, and evidence of legal access to the property upon which the project is proposed.

    (3) Project description, including: Purpose, proposed quantity to be withdrawn or consumed, if applicable, and identification of all water sources related to the project including location and date of initiation of each source.

    (4) Anticipated impact of the project, including impacts on existing water withdrawals, nearby surface waters, and threatened or endangered species and its habitats.

    (5) The reasonably foreseeable need for the proposed quantity of water to be withdrawn or consumed, including supporting calculations, and the projected demand for the term of the approval.

    (6) A metering plan that adheres to § 806.30.

    (7) Evidence of coordination and compliance with member jurisdictions regarding all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project.

    (8) Project estimated completion date and estimated construction schedule.

    (9) Draft notices required by § 806.15.

    (10) The Commission may also require the following information as deemed necessary:

    (i) Engineering feasibility;

    (ii) Ability of the project sponsor to fund the project.

    (b) Additional information is required for a new project or a major modification to an existing approved project as follows.

    (1) Surface water. (i) Water use and availability.

    (ii) Project setting, including surface water characteristics, identification of wetlands, and site development considerations.

    (iii) Description and design of intake structure.

    (iv) Anticipated impact of the proposed project on local flood risk, recreational uses, fish and wildlife and natural environment features.

    (v) Alternatives analysis for a withdrawal proposed in settings with a drainage area of 50 miles square or less, or in a waterway with exceptional water quality, or as required by the Commission.

    (2) Groundwater—(i) Constant-rate aquifer tests. With the exception of mining related withdrawals solely for the purpose of dewatering; construction dewatering withdrawals and withdrawals for the sole purpose of groundwater or below water table remediation generally which are addressed in paragraph (b)(6) of this section, the project sponsor shall provide an interpretative report that includes all monitoring and results of a constant-rate aquifer test consistent with § 806.12 and an updated groundwater availability estimate if changed from the aquifer test plan. The project sponsor shall obtain Commission approval of the test procedures prior to initiation of the constant-rate aquifer test.

    (ii) Water use and availability.

    (iii) Project setting, including nearby surface water features.

    (iv) Groundwater elevation monitoring plan for all production wells.

    (v) Alternatives analysis as required by the Commission.

    (3) Consumptive use. (i) Consumptive use calculations, and a mitigation plan consistent with § 806.22(b).

    (ii) Water conservation methods, design or technology proposed or considered

    (iii) Alternatives analysis as required by the Commission.

    (4) Into basin diversions. (i) Provide the necessary information to demonstrate that the proposed project will meet the standards in § 806.24(c).

    (ii) Identification of the source and water quality characteristics of the water to be diverted.

    (5) Out of basin diversions. (i) Provide the necessary information to demonstrate that the proposed project will meet the standards in § 806.24(b).

    (ii) Project setting.

    (6) Other projects, including without limitation, mine dewatering, construction dewatering, water resources remediation projects, and gravity-drained AMD remediation facilities

    (i) In lieu of aquifer testing, report(s) prepared for any other purpose or as required by other governmental regulatory agencies that provides a demonstration of the hydrogeologic and/or hydrologic effects and limits of said effects due to operation of the proposed project and effects on local water availability.

    (c) All applications for renewal of expiring approved projects shall include, but not be limited to, the following information, and, where applicable, shall be subject to the requirements in paragraph (d) of this section and submitted on forms and in the manner prescribed by the Commission.

    (1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.

    (2) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters, the project location displayed on map with a 7.5-minute USGS topographic base, and evidence of legal access to the property upon which the project is located.

    (3) Project description, to include, but not be limited to: Purpose, proposed quantity to be withdrawn or consumed if applicable, identification of all water sources related to the project including location and date of initiation of each source, and any proposed project modifications.

    (4) The reasonably foreseeable need for the requested renewal of the quantity of water to be withdrawn or consumed, including supporting calculations, and the projected demand for the term of the approval.

    (5) An as-built and approved metering plan.

    (6) Copies of permits from member jurisdictions regarding all necessary permits or approvals obtained for the project from other federal, state or local government agencies having jurisdiction over the project.

    (7) Copy of any approved mitigation or monitoring plan and any related as-built for the expiring project.

    (8) Demonstration of registration of all withdrawals or consumptive uses in accordance with the applicable state requirements.

    (9) Draft notices required by § 806.15.

    (d) Additional information is required for the following applications for renewal of expiring approved projects.

    (1) Surface water. (i) Historic water use quantities and timing of use.

    (ii) Changes to stream flow or quality during the term of the expiring approval.

    (iii) Changes to the facility design.

    (iv) Any proposed changes to the previously authorized purpose.

    (2) Groundwater—(i) Constant-rate aquifer tests. The project sponsor shall provide an interpretative report that includes all monitoring and results of any constant-rate aquifer testing previously completed or submitted to support the original approval. In lieu of a testing report, historic operational data pumping and elevation data may be considered. Those projects that did not have constant-rate aquifer testing completed for the original approval that was consistent with § 806.12 or sufficient historic operational pumping and groundwater elevation data may be required to complete constant-rate aquifer testing consistent with § 806.12, prepare and submit an interpretative report that includes all monitoring and results of any constant-rate aquifer test.

    (ii) An interpretative report providing analysis and comparison of current and historic water withdrawal and groundwater elevation data with previously completed hydro report.

    (iii) Current groundwater availability analysis assessing the availability of water during a 1-in-10 year recurrence interval under the existing conditions within the recharge area and predicted for term of renewal (i.e., other users, discharges, and land development within the groundwater recharge area).

    (iv) Groundwater elevation monitoring plan for all production wells.

    (3) Consumptive use. (i) Consumptive use calculations, and a copy of the approved plan or method for mitigation consistent with § 806.22.

    (ii) Changes to the facility design;

    (iii) Any proposed changes to the previously authorized purpose;

    (4) Into basin diversion. (i) Provide the necessary information to demonstrate that the proposed project will meet the standards in § 806.24(c).

    (ii) Identification of the source and water quality characteristics of the water to be diverted.

    (5) Out of basin diversion. (i) Historic water use quantities and timing of use;

    (ii) Changes to stream flow or quality during the term of the expiring approval;

    (iii) Changes to the facility design;

    (iv) Any proposed changes to the previously authorized purpose;

    (6) Other projects, including without limitation, mine dewatering, water resources remediation projects, and gravity-drained AMD facilities

    (i) Copy of approved report(s) prepared for any other purpose or as required by other governmental regulatory agencies that provides a demonstration of the hydrogeologic and/or hydrologic effects and limits of said effects due to operation of the project and effects on local water availability.

    (ii) Any data or reports that demonstrate effects of the project are consistent with those reports provided in paragraph (d)(6)(i).

    (iii) Demonstration of continued need for expiring approved water source and quantity.

    (e) A report about the project prepared for any other purpose, or an application for approval prepared for submission to a member jurisdiction, may be accepted by the Commission provided the said report or application addresses all necessary items on the Commission's form or listed in this section, as appropriate.

    (f) Applications for minor modifications must be complete and will be on a form and in a manner prescribed by the Commission. Applications for minor modifications must contain the following:

    (1) Description of the project;

    (2) Description of all sources, consumptive uses and diversions related to the project;

    (3) Description of the requested modification;

    (4) Statement of the need for the requested modification; and

    (5) Demonstration that the anticipated impact of the requested modification will not adversely impact the water resources of the basin;

    (g) For any applications, the Executive Director or Commission may require other information not otherwise listed in this section.

    8. Amend § 806.15 by revising paragraph (a), adding paragraph (b)(3) and revising paragraph (g) to read as follows:
    § 806.15 Notice of application.

    (a) Except with respect to paragraphs (h) and (i) of this section, any project sponsor submitting an application to the Commission shall provide notice thereof to the appropriate agency of the member State, each municipality in which the project is located, and the county and the appropriate county agencies in which the project is located. The project sponsor shall also publish notice of submission of the application at least once in a newspaper of general circulation serving the area in which the project is located. The project sponsor shall also meet any of the notice requirements set forth in paragraphs (b) through (f) of this section, if applicable. All notices required under this section shall be provided or published no later than 20 days after submission of the application to the Commission and shall contain a description of the project, its purpose, the requested quantity of water to be withdrawn, obtained from sources other than withdrawals, or consumptively used, and the address, electronic mail address, and phone number of the project sponsor and the Commission. All such notices shall be in a form and manner as prescribed by the Commission

    (b) * * *

    (3) For groundwater withdrawal applications, the Commission or Executive Director may allow notification of property owners through alternate methods where the property is served by a public water supply.

    (g) The project sponsor shall provide the Commission with a copy of the United States Postal Service return receipt for the notifications to agencies of member States, municipalities and appropriate county agencies required under paragraph (a) of this section. The project sponsor shall also provide certification on a form provided by the Commission that it has published the newspaper notice(s) required by this section and made the landowner notifications as required under paragraph (b) of this section, if applicable. Until these items are provided to the Commission, processing of the application will not proceed. The project sponsor shall maintain all proofs of publication and records of notices sent under this section for the duration of the approval related to such notices.

    9. Amend § 806.21 by revising paragraphs (a) and (c)(1) to read as follows:
    § 806.21 General standards.

    (a) A project shall be feasible and not be detrimental to the proper conservation, development, management, or control of the water resources of the basin.

    (c) * * *

    (1) The Commission may suspend the review of any application under this part if the project is subject to the lawful jurisdiction of any member jurisdiction or any political subdivision thereof, and such member jurisdiction or political subdivision has disapproved or denied the project. Where such disapproval or denial is reversed on appeal, the appeal is final, and the project sponsor provides the Commission with a certified copy of the decision, the Commission shall resume its review of the application. Where, however, an application has been suspended hereunder for a period greater than three years, the Commission may terminate its review. Thereupon, the Commission shall notify the project sponsor of such termination and that the application fee paid by the project sponsor is forfeited. The project sponsor may reactivate the terminated application by reapplying to the Commission, providing evidence of its receipt of all necessary governmental approvals and, at the discretion of the Commission, submitting new or updated information.

    10. Revise § 806.22 to read as follows:
    § 806.22 Standards for consumptive use of water.

    (a) The project sponsors of all consumptive water uses subject to review and approval under § 806.4, § 806.5, or § 806.6 of this part shall comply with this section.

    (b) Mitigation. All project sponsors whose consumptive use of water is subject to review and approval under § 806.4, § 806.5, § 806.6, or § 806.17 of this part shall mitigate such consumptive use, including any pre-compact consumptive use if located in a water critical area. Except to the extent that the project involves the diversion of the waters out of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. The Commission shall require mitigation in accordance with an approved mitigation plan. The proposed mitigation plan shall include the method or combination of the following methods of mitigation:

    (1) During low flow periods as may be designated by the Commission for consumptive use mitigation.

    (i) Reduce withdrawal from the approved source(s), in an amount equal to the project's total consumptive use, and withdraw water from alternative surface water storage or aquifers or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 45 days without impact.

    (ii) Release water for flow augmentation, in an amount equal to the project's total consumptive use, from surface water storage or aquifers, or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 45 days without impact.

    (iii) Discontinue the project's consumptive use, except that reduction of project sponsor's consumptive use to less than 20,000 gpd during periods of low flow shall not constitute discontinuance.

    (2) Use, as a source of consumptive use water, surface storage that is subject to maintenance of a conservation release acceptable to the Commission. In any case of failure to provide the specified conservation release, such project shall provide mitigation in accordance with paragraph (b)(3) of this section for the calendar year in which such failure occurs, and the Commission will reevaluate the continued acceptability of the conservation release.

    (3) Provide monetary payment to the Commission, for all water consumptively used over the course of a year, in an amount and manner prescribed by the Commission.

    (4) Implement other alternatives approved by the Commission.

    (c) Determination of manner of mitigation. The Commission will, in its sole discretion, determine the acceptable manner of mitigation to be provided by project sponsors whose consumptive use of water is subject to review and approval. Such a determination will be made after considering the project's location, including whether the project is located in a water critical area, source characteristics, anticipated amount of consumptive use, proposed method of mitigation and their effects on the purposes set forth in § 806.2 of this part, and any other pertinent factors. The Commission may modify, as appropriate, the manner of mitigation, including the magnitude and timing of any mitigating releases, required in a project approval.

    (d) Quality of water released for mitigation. The physical, chemical and biological quality of water released for mitigation shall at all times meet the quality required for the purposes listed in § 806.2, as applicable.

    (e) Approval by rule for consumptive uses. (1) Except with respect to projects involving hydrocarbon development subject to the provisions of paragraph (f) of this section, any project who is solely supplied water for consumptive use by public water supply may be approved by the Executive Director under this paragraph (e) in accordance with the following, unless the Executive Director determines that the project cannot be adequately regulated under this approval by rule.

    (2) Notification of intent. Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a notice of intent (NOI) on forms prescribed by the Commission, and the appropriate application fee, along with any required attachments.

    (3) Within 20 days after submittal of an NOI under paragraph (f)(2) of this section, the project sponsor shall satisfy the notice requirements set forth in § 806.15.

    (4) Metering, daily use monitoring, and quarterly reporting. The project sponsor shall comply with metering, daily use monitoring, and quarterly reporting as specified in § 806.30.

    (5) Standard conditions. The standard conditions set forth in § 806.21 shall apply to projects approved by rule.

    (6) Mitigation. The project sponsor shall comply with mitigation in accordance with § 806.22 (b)(2) or (3).

    (7) Compliance with other laws. The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project. The Commission reserves the right to modify, suspend or revoke any approval under this paragraph (e) if the project sponsor fails to obtain or maintain such approvals.

    (8) The Executive Director may grant, deny, suspend, revoke, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule previously granted hereunder, and will notify the project sponsor of such determination, including the quantity of consumptive use approved.

    (9) Approval by rule shall be effective upon written notification from the Executive Director to the project sponsor, shall expire 15 years from the date of such notification, and shall be deemed to rescind any previous consumptive use approvals.

    (f) Approval by rule for consumptive use related to unconventional natural gas and other hydrocarbon development. (1) Any unconventional natural gas development project, or any hydrocarbon development project subject to review and approval under § 806.4, 806.5, or 806.6, shall be subject to review and approval by the Executive Director under this paragraph (f) regardless of the source or sources of water being used consumptively.

    (2) Notification of intent. Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a notice of intent (NOI) on forms prescribed by the Commission, and the appropriate application fee, along with any required attachments.

    (3) Within 20 days after submittal of an NOI under paragraph (f)(2) of this section, the project sponsor shall satisfy the notice requirements set forth in § 806.15.

    (4) The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in § 806.30, or as otherwise required by the approval by rule. Daily use monitoring shall include amounts delivered or withdrawn per source, per day, and amounts used per gas well, per day, for well drilling, hydrofracture stimulation, hydrostatic testing, and dust control. The foregoing shall apply to all water, including stimulation additives, flowback, drilling fluids, formation fluids and production fluids, utilized by the project. The project sponsor shall also submit a post-hydrofracture report in a form and manner as prescribed by the Commission.

    (5) The project sponsor shall comply with the mitigation requirements set forth in § 806.22(b).

    (6) Any flowback or production fluids utilized by the project sponsor for hydrofracture stimulation undertaken at the project shall be separately accounted for, but shall not be included in the daily consumptive use amount calculated for the project, or be subject to the mitigation requirements of § 806.22(b).

    (7) The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state, or local government agencies having jurisdiction over the project. The Executive Director reserves the right to modify, suspend or revoke any approval under this paragraph (f) if the project sponsor fails to obtain or maintain such approvals.

    (8) The project sponsor shall certify to the Commission that all flowback and production fluids have been re-used or treated and disposed of in accordance with applicable state and federal law.

    (9) The Executive Director may grant, deny, suspend, revoke, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule granted hereunder, and will notify the project sponsor of such determination, including the sources and quantity of consumptive use approved. The issuance of any approval hereunder shall not be construed to waive or exempt the project sponsor from obtaining Commission approval for any water withdrawals or diversions subject to review pursuant to § 806.4(a). Any sources of water approved pursuant to this section shall be further subject to any approval or authorization required by the member jurisdiction.

    (10) Approval by rule shall be effective upon written notification from the Executive Director to the project sponsor, shall expire five years from the date of such notification, and supersede any previous consumptive use approvals to the extent applicable to the project.

    (11) In addition to water sources approved for use by the project sponsor pursuant to § 806.4 or this section, for unconventional natural gas development or hydrocarbon development, whichever is applicable, a project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize any of the following water sources at the drilling pad site, subject to such monitoring and reporting requirements as the Commission may prescribe:

    (i) Tophole water encountered during the drilling process, provided it is used only for drilling or hydrofracture stimulation.

    (ii) Precipitation or stormwater collected on the drilling pad site, provided it is used only for drilling or hydrofracture stimulation.

    (iii) Drilling fluids, formation fluids, flowback or production fluids obtained from a drilling pad site, production well site or hydrocarbon water storage facility, provided it is used only for hydrofracture stimulation, and is handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.

    (iv) Water obtained from a hydrocarbon water storage facility associated with an approval issued by the Commission pursuant to § 806.4(a) or by the Executive Director pursuant to this section, provided it is used only for the purposes authorized therein, and in compliance with all standards and requirements of the applicable member jurisdiction.

    (12) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize a source of water approved by the Commission pursuant to § 806.4(a), or by the Executive Director pursuant to paragraph (f)(14) of this section, and issued to persons other than the project sponsor, provided any such source is approved for use in unconventional natural gas development, or hydrocarbon development, whichever is applicable, the project sponsor has an agreement for its use, and at least 10 days prior to use, the project sponsor registers such source with the Commission on a form and in the manner prescribed by the Commission.

    (13) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may also utilize other sources of water, including but not limited to, public water supply or wastewater discharge not otherwise associated with an approval issued by the Commission pursuant to § 806.4(a) or an approval by rule issued pursuant to paragraph (f)(9) of this section, provided such sources are first approved by the Executive Director. Any request for approval shall be submitted on a form and in the manner prescribed by the Commission, shall satisfy the notice requirements set forth in § 806.15, and shall be subject to review pursuant to the standards set forth in subpart C of this part.

    (14) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize water obtained from a hydrocarbon water storage facility that is not otherwise associated with an approval issued by the Commission pursuant to § 806.4(a), or an approval by rule issued pursuant to paragraph (f)(9) of this section, provided such sources are first approved by the Executive Director and are constructed and maintained in compliance with all standards and requirements of the applicable member jurisdiction. The owner or operator of any such facility shall submit a request for approval on a form and in the manner prescribed by the Commission, shall satisfy the notice requirements set forth in § 806.15, and shall be subject to review pursuant to the standards set forth in subpart C of this part.

    (15) The project sponsor shall provide a copy of any registration or source approval issued pursuant to this section to the appropriate agency of the applicable member jurisdiction. The project sponsor shall record on a daily basis, and report quarterly on a form and in a manner prescribed by the Commission, the quantity of water obtained from any source registered or approved hereunder. Any source approval issued hereunder shall also be subject to such monitoring and reporting requirements as may be contained in such approval or otherwise required by this part.

    11. Amend § 806.23 by revising paragraphs (b)(2) and (b)(3)(i) and adding paragraph (b)(5) to read as follows:
    § 806.23 Standards for water withdrawals.

    (b) * * *

    (2) The Commission may deny an application, limit or condition an approval to ensure that the withdrawal will not cause significant adverse impacts to the water resources of the basin. The Commission may consider, without limitation, the following in its consideration of adverse impacts: Lowering of groundwater or stream flow levels; groundwater and surface water availability, including cumulative uses; rendering competing supplies unreliable; affecting other water uses; causing water quality degradation that may be injurious to any existing or potential water use; affecting fish, wildlife or other living resources or their habitat; causing permanent loss of aquifer storage capacity; affecting wetlands; or affecting low flow of perennial or intermittent streams.

    (3) * * *

    (i) Limit the quantity, timing or rate of withdrawal or level of drawdown, including requiring a total system limit.

    (5) For projects consisting of mine dewatering, water resources remediation, and gravity-drained AMD facilities, review of adverse impacts will have limited consideration of groundwater availability, causing permanent loss of aquifer storage and lowering of groundwater levels provided these projects are operated in accordance with the laws and regulations of the member jurisdictions.

    12. Amend § 806.30 by revising the introductory text and revising paragraph (a)(4) and adding paragraph (a)(8) to read as follows:
    § 806.30 Monitoring.

    The Commission, as part of the project review, shall evaluate the proposed methodology for monitoring consumptive uses, water withdrawals and mitigating flows, including flow metering devices, stream gages, and other facilities used to measure the withdrawals or consumptive use of the project or the rate of stream flow. If the Commission determines that additional flow measuring, metering or monitoring devices are required, these shall be provided at the expense of the project sponsor, installed in accordance with a schedule set by the Commission, and installed per the specifications and recommendations of the manufacturer of the device, and shall be subject to inspection by the Commission at any time.

    (a) * * *

    (4) Measure groundwater levels in all approved production and other wells, as specified by the Commission.

    (8) Perform other monitoring for impacts to water quantity, water quality and aquatic biological communities, as specified by the Commission.

    13. Amend § 806.31 by revising paragraphs (d) and (e) to read as follows:
    § 806.31 Term of approvals.

    (d) If the Commission determines that a project has been abandoned, by evidence of nonuse for a period of time and under such circumstances that an abandonment may be inferred, the Commission may revoke the approval for such withdrawal, diversion or consumptive use.

    (e) If a project sponsor submits an application to the Commission no later than six months prior to the expiration of its existing Commission docket approval or no later than one month prior to the expiration of its existing ABR or NOI approval, the existing approval will be deemed extended until such time as the Commission renders a decision on the application, unless the existing approval or a notification in writing from the Commission provides otherwise.

    14. Add subpart E to read as follows: Subpart E—Registration of Grandfathered Projects Sec. 806.40 Applicability. 806.41 Registration and eligibility. 806.42 Registration requirements. 806.43 Metering and monitoring requirements. 806.44 Determination of grandfathered quantities. 806.45 Appeal of determination.
    § 806.40 Applicability.

    (a) This subpart is applicable to the following projects, which shall be known as grandfathered projects:

    (1) The project has an associated average consumptive use of 20,000 gpd or more in any consecutive 30-day period all or part of which is a pre-compact consumptive use that has not been approved by the Commission pursuant to § 806.4.

    (2) The project has an associated groundwater withdrawal average of 100,000 gpd or more in any consecutive 30-day period all or part of which was initiated prior to July 13, 1978, that has not been approved by the Commission pursuant to § 806.4.

    (3) The project has an associated surface water withdrawal average of 100,000 gpd or more in any consecutive 30-day period all or part of which was initiated prior to November 11, 1995, that has not been approved by the Commission pursuant to § 806.4.

    (4) The project (or an element of the project) has been approved by the Commission but has an associated consumptive use or water withdrawal that has not been approved by the Commission pursuant to § 806.4.

    (5) Any project not included in paragraphs (a)(2) through (4) of this section that has a total withdrawal average of 100,000 gpd or more in any consecutive 30-day average from any combination of sources which was initiated prior to January 1, 2007, that has not been approved by the Commission pursuant to § 806.4.

    (6) Any source associated with a project included in paragraphs (a)(2) through (5) of this section regardless of quantity.

    (b) A project, including any source of the project, that can be determined to have been required to seek Commission review and approval under the pertinent regulations in place at the time is not eligible for registration as a grandfathered project.

    § 806.41 Registration and eligibility.

    (a) Projects sponsors of grandfathered projects identified in § 806.40 shall submit a registration to the Commission, on a form and in a manner prescribed by the Commission, within two years of the effective date of this regulation.

    (b) Any grandfathered project that fails to register under paragraph (a) of this section shall be subject to Commission's review and approval under § 806.4.

    (c) Any project that is not eligible to register under paragraph (a) of this section shall be subject to Commission's review and approval under § 806.4.

    (d) The Commission may establish fees for obtaining and maintaining registration in accordance with § 806.35.

    (e) A registration under this subpart may be transferred pursuant to § 806.6.

    § 806.42 Registration requirements.

    (a) Registrations shall include the following information:

    (1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.

    (2) Description of the project and site in terms of:

    (i) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters.

    (ii) Project purpose.

    (3) Identification of all sources of water, including the date the source was put into service, each source location (including latitude and longitude coordinates in decimal degrees accurate to within 10 meters), and if applicable, any approved docket numbers.

    (4) Identification of current metering and monitoring methods for water withdrawal and consumptive use.

    (5) Identification of current groundwater level or elevation monitoring methods at groundwater sources.

    (6) All quantity data for water withdrawals and consumptive use for a minimum of the previous five calendar years. If quantity data are not available, any information available upon which a determination of quantity could be made.

    (7) For consumptive use, description of processes that use water, identification of water returned to the Basin, history of the use, including process changes, expansions and other actions that would have an impact on the amount of water consumptively used during the past five calendar years.

    (8) Based on the data provided, the quantity of withdrawal for each individual source and consumptive use the project sponsor requests to be grandfathered by the Commission.

    (9) Any ownership or name changes to the project since January 1, 2007.

    (b) The Commission may require any other information it deems necessary for the registration process.

    § 806.43 Metering and monitoring requirements.

    (a) As a part of the registration process, the Commission shall review the current metering and monitoring for grandfathered withdrawals and consumptive uses.

    (b) The Commission may require a metering and monitoring plan for the project sponsor to follow.

    (c) Project sponsors, as an ongoing obligation of their registration, shall report to the Commission all information specified in the grandfathering determination under § 806.44 in a form and manner determined by the Commission. If quantity reporting is required by the member jurisdiction where the project is located, the Commission may accept that reported quantity to satisfy the requirements of this paragraph.

    § 806.44 Determination of grandfathered quantities.

    (a) For each registration submitted, the Executive Director shall determine the grandfathered quantity for each withdrawal source and consumptive use.

    (b) In making a determination, the following factors should be considered:

    (1) The most recent withdrawal and use data;

    (2) The reliability and accuracy of the data and/or the meters or measuring devices;

    (3) Determination of reasonable and genuine usage of the project, including any anomalies in the usage; and

    (4) Other relevant factors.

    § 806.45 Appeal of determination.

    (a) A final determination of the grandfathered quantity by the Executive Director must be appealed to the Commission within 30 days from actual notice of the determination.

    (b) The Commission shall appoint a hearing officer to preside over appeals under this section. Hearings shall be governed by the procedures set forth in part 808 of this chapter.

    PART 808—HEARINGS AND ENFORCEMENT ACTIONS 15. The authority citation for part 808 continues to read as follows: Authority:

    Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 et seq.

    16. Revise § 808.1 to read as follows:
    § 808.1 Public hearings.

    (a) A public hearing shall be conducted in the following instances:

    (1) Addition of projects or adoption of amendments to the comprehensive plan, except as otherwise provided by section 14.1 of the compact.

    (2) Review and approval of diversions.

    (3) Imposition or modification of rates and charges.

    (4) Determination of protected areas.

    (5) Drought emergency declarations.

    (6) Hearing requested by a member jurisdiction.

    (7) As otherwise required by sections 3.5(4), 4.4, 5.2(e), 6.2(a), 8.4, and 10.4 of the compact.

    (b) A public hearing may be conducted by the Commission or the Executive Director in any form or style chosen by the Commission or Executive Director in the following instances:

    (1) Proposed rulemaking.

    (2) Consideration of projects, except projects approved pursuant to memoranda of understanding with member jurisdictions.

    (3) Adoption of policies and technical guidance documents.

    (4) Identification of a water critical area.

    (5) When it is determined that a hearing is necessary to give adequate consideration to issues related to public health, safety and welfare, or protection of the environment, or to gather additional information for the record or consider new information on a matter before the Commission.

    (c) Notice of public hearing. At least 20 days before any public hearing required by the compact, notices stating the date, time, place and purpose of the hearing including issues of interest to the Commission shall be published at least once in a newspaper of general circulation in the area affected. In all other cases, at least 20 days prior to the hearing, notice shall be posted on the Commission Web site, sent to the parties who, to the Commission's knowledge, will participate in the hearing, and sent to persons, organizations and news media who have made requests to the Commission for notices of hearings or of a particular hearing. With regard to rulemaking, hearing notices need only be forwarded to the directors of the New York Register, the Pennsylvania Bulletin, the Maryland Register and the Federal Register, and it is sufficient that this notice appear in the Federal Register at least 20 days prior to the hearing and in each individual state publication at least 10 days prior to any hearing scheduled in that state.

    (d) Standard public hearing procedure. (1) Hearings shall be open to the public. Participants may be any person, including a project sponsor, wishing to appear at the hearing and make an oral or written statement. Statements shall be made a part of the record of the hearing, and written statements may be received up to and including the last day on which the hearing is held, or within 10 days or a reasonable time thereafter as may be specified by the presiding officer.

    (2) Participants are encouraged to file with the Commission at its headquarters written notice of their intention to appear at the hearing. The notice should be filed at least three days prior to the opening of the hearing.

    (e) Representative capacity. Participants wishing to be heard at a public hearing may appear in person or be represented by an attorney or other representative. A governmental authority may be represented by one of its officers, employees or by a designee of the governmental authority.

    (f) Description of project. When notice of a public hearing is issued, there shall be available for inspection, consistent with the Commission's Access to Records Policy, all plans, summaries, maps, statements, orders or other supporting documents which explain, detail, amplify, or otherwise describe the project the Commission is considering. Instructions on where and how the documents may be obtained will be included in the notice.

    (g) Presiding officer. A public hearing shall be presided over by the Commission chair, the Executive Director, or any member or designee of the Commission or Executive Director. The presiding officer shall have full authority to control the conduct of the hearing and make a record of the same.

    (h) Transcript. Whenever a project involving a diversion of water is the subject of a public hearing, and at all other times deemed necessary by the Commission or the Executive Director, a written transcript of the hearing shall be made. A certified copy of the transcript and exhibits shall be available for review during business hours at the Commission's headquarters to anyone wishing to examine them. Persons wishing to obtain a copy of the transcript of any hearing shall make arrangements to obtain it directly from the recording stenographer at their expense.

    (i) The Commission may conduct any public hearings in concert with any other agency of a member jurisdiction.

    17. Revise § 808.2 to read as follows:
    § 808.2 Administrative appeals.

    (a) A project sponsor or other person aggrieved by a final action or decision of the Executive Director shall file a written appeal with the Commission within 30 days of the receipt of actual notice by the project sponsor or within 30 days of publication of the action on the Commission's Web site or in the Federal Register. Appeals shall be filed on a form and in a manner prescribed by the Commission and the petitioner shall have 20 days from the date of filing to amend the appeal. The following is a non-exclusive list of actions by the Executive Director that are subject to an appeal to the Commission:

    (1) A determination that a project requires review and approval under § 806.5 of this chapter;

    (2) An approval or denial of an application for transfer under § 806.6 of this chapter;

    (3) An approval of a Notice of Intent under a general permit under § 806.17 of this chapter.

    (4) An approval of a minor modification under § 806.18 of this chapter; and

    (5) A determination regarding an approval by rule under § 806.22(e) or (f) of this chapter;

    (6) A determination regarding an emergency certificate under § 806.34 of this chapter;

    (7) Enforcement orders issued under § 808.14;

    (8) A finding regarding a civil penalty under § 808.15(c);

    (9) A determination of grandfathered quantity under § 806.44 of this chapter;

    (10) A decision to modify, suspend or revoke a previously granted approval;

    (11) A records access determination made pursuant to Commission policy;

    (b) The appeal shall identify the specific action or decision being appealed, the date of the action or decision, the interest of the person requesting the hearing in the subject matter of the appeal, and a statement setting forth the basis for objecting to or seeking review of the action or decision.

    (c) Any request not filed on or before the applicable deadline established in paragraph (a) of this section hereof will be deemed untimely and such request for a hearing shall be considered denied unless the Commission, upon written request and for good cause shown, grants leave to make such filing nunc pro tunc; the standard applicable to what constitutes good cause shown being the standard applicable in analogous cases under Federal law. Receipt of requests for hearings pursuant to this section, whether timely filed or not, shall be submitted by the Executive Director to the commissioners for their information.

    (d) Petitioners shall be limited to a single filing that shall set forth all matters and arguments in support thereof, including any ancillary motions or requests for relief. Issues not raised in this single filing shall be considered waived for purposes of the instant proceeding. Where the petitioner is appealing a final determination on a project application and is not the project sponsor, the petitioner shall serve a copy of the appeal upon the project sponsor within five days of its filing.

    (e) The Commission will determine the manner in which it will hear the appeal. If a hearing is granted, the Commission shall serve notice thereof upon the petitioner and project sponsor and shall publish such notice in the Federal Register. The hearing shall not be held less than 20 days after publication of such notice. Hearings may be conducted by one or more members of the Commission, or by such other hearing officer as the Commission may designate.

    (1) The petitioner may also request a stay of the action or decision giving rise to the appeal pending final disposition of the appeal, which stay may be granted or denied by the Executive Director after consultation with the Commission chair and the member from the affected member State. The decision of the Executive Director on the request for stay shall not be appealable to the Commission under this section and shall remain in full force and effect until the Commission acts on the appeal.

    (2) In addition to the contents of the request itself, the Executive Director, in granting or denying the request for stay, will consider the following factors:

    (i) Irreparable harm to the petitioner.

    (ii) The likelihood that the petitioner will prevail.

    (f) The Commission shall grant the hearing request pursuant to this section if it determines that an adequate record with regard to the action or decision is not available, or that the Commission has found that an administrative review is necessary or desirable. If the Commission denies any request for a hearing, the party seeking such hearing shall be limited to such remedies as may be provided by the compact or other applicable law or court rule. If a hearing is granted, the Commission shall refer the matter for hearing to be held in accordance with § 808.3, and appoint a hearing officer.

    (g) If a hearing is not granted, the Commission may set a briefing schedule and decide the appeal based on the record before it. The Commission may, in its discretion, schedule and hear oral argument on an appeal.

    (h) Intervention. (1) A request for intervention may be filed with the Commission by persons other than the petitioner within 20 days of the publication of a notice of the granting of such hearing in the Federal Register. The request for intervention shall state the interest of the person filing such notice, and the specific grounds of objection to the action or decision or other grounds for appearance. The hearing officer(s) shall determine whether the person requesting intervention has standing in the matter that would justify their admission as an intervener to the proceedings in accordance with Federal case law.

    (2) Interveners shall have the right to be represented by counsel, to present evidence and to examine and cross-examine witnesses.

    (i) Where a request for an appeal is made, the 90-day appeal period set forth in section 3.10(6) and Federal reservation (o) of the compact shall not commence until the Commission has either denied the request for or taken final action on an administrative appeal.

    18. Revise § 808.11 to read as follows:
    § 808.11 Duty to comply.

    It shall be the duty of any person to comply with any provision of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, staff directives or any other requirement of the Commission.

    19. Revise § 808.14 to read as follows:
    § 808.14 Orders.

    (a) Whether or not an NOV has been issued, the Executive Director may issue an order directing an alleged violator to cease and desist any action or activity to the extent such action or activity constitutes an alleged violation, or may issue any other order related to the prevention of further violations, or the abatement or remediation of harm caused by the action or activity.

    (b) If the project sponsor fails to comply with any term or condition of a docket or other approval, the commissioners or Executive Director may issue an order suspending, modifying or revoking approval of the docket. The commissioners may also, in their discretion, suspend, modify or revoke a docket approval if the project sponsor fails to obtain or maintain other federal, state or local approvals.

    (c) The commissioners or Executive Director may issue such other orders as may be necessary to enforce any provision of the compact, the Commission's rules or regulations, orders, approvals, docket conditions, or any other requirements of the Commission.

    (d) It shall be the duty of any person to proceed diligently to comply with any order issued pursuant to this section.

    (e) The Commission or Executive Director may enter into a Consent Order and Agreement with an alleged violator to resolve non-compliant operations and enforcement proceedings in conjunction with or separately from settlement agreements under § 808.18.

    20. Revise § 808.15 to read as follows:
    § 808.15 Show cause proceeding.

    (a) The Executive Director may issue an order requiring an alleged violator to show cause why a penalty should not be assessed in accordance with the provisions of this chapter and section 15.17 of the compact. The order to the alleged violator shall:

    (1) Specify the nature and duration of violation(s) that is alleged to have occurred.

    (2) Set forth the date by which the alleged violator must provide a written response to the order.

    (3) Identify the civil penalty recommended by Commission staff.

    (b) The written response by the project sponsor should include the following:

    (1) A statement whether the project sponsor contests that the violations outlined in the Order occurred;

    (2) If the project sponsor contests the violations, then a statement of the relevant facts and/or law providing the basis for the project sponsor's position;

    (3) Any mitigating factors or explanation regarding the violations outlined in the Order;

    (4) A statement explaining what the appropriate civil penalty, if any, should be utilizing the factors at § 808.16.

    (c) Based on the information presented and any relevant policies, guidelines or law, the Executive Director shall make a written finding affirming or modifying the civil penalty recommended by Commission staff.

    21. Amend § 808.16 by revising paragraph (a) introductory text and paragraph (a)(7), adding paragraph (a)(8), and revising paragraph (b) to read as follows:
    § 808.16 Civil penalty criteria.

    (a) In determining the amount of any civil penalty or any settlement of a violation, the Commission and Executive Director shall consider:

    (7) The length of time over which the violation occurred and the amount of water used, diverted or withdrawn during that time period.

    (8) The punitive effect of a civil penalty.

    (b) The Commission and/or Executive Director retains the right to waive any penalty or reduce the amount of the penalty recommended by the Commission staff under § 808.15(a)(3) should it be determined, after consideration of the factors in paragraph (a) of this section, that extenuating circumstances justify such action.

    22. Revise § 808.17 to read as follows:
    § 808.17 Enforcement of penalties, abatement or remedial orders.

    Any penalty imposed or abatement or remedial action ordered by the Commission or the Executive Director shall be paid or completed within such time period as shall be specified in the civil penalty assessment or order. The Executive Director and Commission counsel are authorized to take such additional action as may be necessary to assure compliance with this subpart. If a proceeding before a court becomes necessary, the penalty amount determined in accordance with this part shall constitute the penalty amount recommended by the Commission to be fixed by the court pursuant to section 15.17 of the compact.

    23. Revise § 808.18 to read as follows:
    § 808.18 Settlement by agreement.

    (a) An alleged violator may offer to settle an enforcement action by agreement. The Executive Director may enter into settlement agreements to resolve an enforcement action. The Commission may, by Resolution, require certain types of enforcement actions or settlements to be submitted to the Commission for action or approval.

    (b) In the event the violator fails to carry out any of the terms of the settlement agreement, the Commission or Executive Director may reinstitute a civil penalty action and any other applicable enforcement action against the alleged violator.

    Dated: September 15, 2016. Stephanie L. Richardson, Secretary to the Commission.
    [FR Doc. 2016-22668 Filed 9-20-16; 8:45 am] BILLING CODE 7040-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [PS Docket No. 16-269, FCC 16-117] Procedures for Commission Review of State Opt-Out Requests From the FirstNet Radio Access Network AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document the Commission opens a new proceeding relating to the National Public Safety Broadband Network being implemented by the First Responder Network Authority (FirstNet). The proceeding seeks comment on proposed procedures for administering the Commission's role in the State opt-out process from the FirstNet radio access network as provided under the Middle Class Tax Relief and Job Creation Act of 2012, as well as on the Commission's implementation of the specific statutory standards by which it is obligated to evaluate State opt-out applications.

    DATES:

    Comments are due on or before October 21, 2016 and reply comments are due on or before November 21, 2016.

    ADDRESSES:

    You may submit comments, identified by PS Docket No. 16-269-87, by any of the following methods:

    Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Roberto Mussenden, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-1428.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, PS Docket No. 16-269, FCC 16-117, released on August 25, 2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    1. In the Notice of Proposed Rulemaking (NPRM), the Commission opens a new proceeding relating to the National Public Safety Broadband Network (NPSBN) being implemented by the First Responder Network Authority (FirstNet) pursuant to the provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”). The NPRM seeks comment on proposed procedures for administering the Commission's role in the State opt-out process from the FirstNet radio access network as provided under the Act, as well as on the Commission's implementation of the specific statutory standards by which it is obligated to evaluate State opt-out applications.

    2. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in PS Docket No. 16-269 on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    3. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    4. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    5. Commenters who file information that they believe should be withheld from public inspection may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. See Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on Reconsideration, 14 FCC Rcd 20128 (1999). Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act (FOIA) must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption.

    6. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    Procedural Matters A. Initial Regulatory Flexibility Analysis

    7. The Initial Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in appendix C of the NPRM.

    8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be filed by the same dates as listed on the first page of the NPRM and must have a separate and distinct heading designating them as responses to this IRFA. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    B. Need for, and Objectives of, the Proposed Rules

    9. The NPRM seeks comment on proposals to implement provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”) governing deployment of the Nationwide Public Safety Broadband Network (NPSBN) in the 700 MHz band.

    10. The Public Safety Spectrum Act establishes the First Responder Network Authority (FirstNet) to oversee the construction and operation of the NPSBN as licensee of both the existing public safety broadband spectrum (763-769/793-799 MHz) and the spectrally adjacent D Block spectrum (758-763/788-793 MHz). The Act directs the Federal Communications Commission (FCC or Commission) to reallocate the D Block for public safety services, to license the D Block and the existing public safety broadband spectrum to FirstNet and to take other actions necessary to “facilitate the transition” of such existing spectrum to FirstNet. The Act gives each State the option to opt out of FirstNet's Radio Access Network (RAN) deployment within that State and conduct its own RAN deployment.

    11. Proposals in the NPRM are intended to provide States and other interested parties with clarity and an opportunity to comment on the procedures that the Commission will establish for filing and review of State opt-out requests and associated alternative State plans, the content to be included in state opt-out filings with the Commission, and the evaluation process that the Commission will use to approve or disapprove State opt-out requests in accordance with the criteria specified in the Act.

    C. Legal Basis

    12. The proposed action is authorized under pursuant to sections 1, 4(i), 4(j), 301, 303, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156.

    D. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

    13. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules proposed herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules changes we propose in this document.

    14. As an initial matter, we observe that the Public Safety Spectrum Act does not contemplate that “small governmental jurisdictions” would be directly authorized to serve as operators of their own 700 MHz public safety broadband networks. Rather, the Act charges a single entity, FirstNet, with constructing, operating, and maintaining the NPSBN on a nationwide basis. Accordingly, the requirements the NPRM proposes or considers for the combined 700 MHz public safety broadband spectrum—in which FirstNet will operate on a nationwide basis—will not directly affect a substantial number of small entities. The absence of a direct effect on a substantial number of small entities suggests that it is not necessary to prepare a regulatory flexibility analysis in connection with these proposed requirements.

    E. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    15. The NPRM seeks comment on when State Governors will be required to notify FirstNet, NTIA, and the Commission if they wish to opt out of the NPSBN. Specifically the NPRM proposes to require States electing to opt out of the NPSBN to file a notification with the Commission no later than 90 days after the date they receive electronic notice of FirstNet's final proposed plan for the State. The NPRM also seeks comment how notice should be provided and on whether an entity other than a State Governor, such as the Governor's designee should be permitted to complete this filing requirement.

    16. The NPRM seeks comment on the Act's provision that States choosing to opt out have 180 days to “develop and complete” requests for proposals (RFPs). In particular, the NPRM seeks comment on what showing is sufficient to demonstrate that a State has “completed” its RFP within the 180-day period. The NPRM further proposes that, if a State notifies the Commission of its intention to opt out of the NPSBN, the State will have 180 days from the date it provides such notification to submit its alternative plan to the Commission. The NPRM proposes to treat a State's failure to submit an alternative plan within the 180-day period as discontinuing that State's opt out process and forfeiting its right to further consideration of its opt-out request. The NPRM seeks comment on what an opt-out State should be required to include in its alternative plan for the plan to be considered complete for purposes of the Commission's review.

    17. The NPRM seeks comment on whether States should be required to file their alternative plans in PS Docket No. 16-269, and the scope and types of information that must be included in the submission. The NPRM also seeks comment on whether States should be allowed to file amendments or provide supplemental information to the plan once it is filed with the Commission and prior to the Commission's decision. Should Commission staff be permitted to discuss or seek clarification of the alternative plan contents with the filer? If a plan is deemed sufficient for our purposes before a State awards a contract pursuant to its RFP, should the Commission condition approval on substantial compliance with the approved plan under the awarded contract, or should this be addressed by NTIA under its “ongoing” interoperability evaluation?

    18. The NPRM also seeks comment on who should have access to and the ability to comment on State alternative plans. In this regard, the NPRM seeks comment on the extent to which State alternative plans may contain confidential, competitive, or sensitive information or information that implicates national security. Should State plans be treated as confidential, with public notice limited to identifying which States have elected to opt out and filed an alternative plan? If so, should the Commission require such filing, and should the public be given an opportunity to comment on them? If State plans were filed publicly, would the Commission's existing rules allowing parties to request confidential treatment for their filings provide adequate protection of sensitive information? Alternatively, given the likelihood of sensitive information and the limited scope of the Commission's review of State plans under section 6302(e)(3)(C)(i) of the Act, should the Commission limit the parties that are entitled to review and comment on such plans? Should comment be limited to specific issues?

    19. The NPRM also seeks comment on whether FirstNet and/or NTIA should be allowed access and the ability to comment to the Commission on State plans within a defined comment period. Assuming that FirstNet and NTIA are afforded a right to comment on State plans, should States have the right to respond to such comments? What rights, if any, should States have to review or comment on alternative plans submitted by other States? What other procedures are appropriate for the Commission's review of such plans? How can the Commission most appropriately ensure that it has heard all “evidence pertinent and material to the decision”?

    20. The NPRM proposes that each alternative plan submitted to the Commission should receive expeditious review. The NPRM proposes to establish a “shot clock” for Commission action on alternative plans to provide a measure of certainty and expedience to the process. The NPRM seeks comment on what an appropriate shot clock period would be.

    21. The NPRM seeks comment on the standard against which alternative State plans will be evaluated, specifically with respect to the Act's requirements that alternative plans demonstrate: (1) that the State will be in compliance with the minimum technical interoperability requirements developed under section 6203, and (2) interoperability with the nationwide public safety broadband network.

    22. Under the first prong, the NPRM seeks comment on the utilization of RAN-related requirements specified in the minimum technical interoperability requirements. Specifically, the NPRM proposes that review under this prong would include requirements (1)-(3), (7)-(10), (20)-(25), (29), (39), (41)-(42) from the Board Report, as documented in Appendix B of the NPRM.

    23. Under the second prong, the NPRM proposes a broader view than the first prong in demonstrating “interoperability” with the NPSBN, but still limited to the RAN. In particular, the NPRM seeks comment on the role of the Commission to independently and impartially evaluate whether alternative plans comply with the interoperability-related requirements established by FirstNet, and suggests that the Commission does not have the ability to impose network policies or interoperability requirements on FirstNet.

    24. The NPRM seeks comment on the view that if the Commission disapproves a plan, the opportunity for a State to conduct its own RAN deployment will be forfeited and FirstNet “shall proceed in accordance with its proposed plan for that State.”

    25. The NPRM seeks comment on the view that the Commission's approval of a State opt-out plan as meeting the interoperability criteria in ection 6302(e)(3)(C) of the Act would not create a presumption that the State plan meets any of the criteria that NTIA is responsible for evaluating under section 6302(e)(3)(D) of the Act.

    26. The NPRM seeks comment on how the Commission should document its decisions to approve or disapprove State opt-out requests under the statutory criteria. Should it issue a written decision or order explaining the basis for each decision, or would it be sufficient to provide more limited notice of approval or disapproval in each case without a detailed explanation?

    F. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    27. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof for small entities.

    28. The proposed rules will not affect any small entities.

    G. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    29. None.

    H. Paperwork Reduction Act of 1995 Analysis

    30. This NPRM seeks comment on potential new information collection requirements. If the Commission adopts any new information collection requirements, the Commission will publish a document in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    Ordering Clauses

    31. Accordingly, it is ordered that, pursuant to sections 1, 4(i), 4(j), 301, 303, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156, the Notice of Proposed Rulemaking is hereby adopted.

    32. It is further ordered that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the NPRM on or before October 21, 2016 and reply comments on or before November 21, 2016.

    List of Subjects in 47 CFR Part 90

    Radio.

    Federal Communications Commission. Marlene Dortch, Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 90 as follows:

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for part 90 continues to read as follows: Authority:

    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) and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    2. Revise § 90.532 to read as follows:
    § 90.532 Licensing of the 758-769 MHz and 788-799 MHz Bands; State opt-out election and alternative plans.

    (a) First Responder Network Authority license and renewal. Pursuant to section 6201 of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156 (2012), a nationwide license for use of the 758-769 MHz and 788-799 MHz bands shall be issued to the First Responder Network Authority for an initial license term of ten years from the date of the initial issuance of the license. Prior to expiration of the term of such initial license, the First Responder Network Authority shall submit to the Commission an application for the renewal of such license. Such renewal application shall demonstrate that, during the preceding license term, the First Responder Network Authority has met the duties and obligations set forth under the foregoing Act. A renewal license shall be for a term not to exceed ten years.

    (b) State election to opt out of the First Responder Network Authority Nationwide Network. No later than 90 days after receipt of notice from the First Responder Network Authority under section 6302(e)(1) of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156 (Spectrum Act), any State governor electing to opt out and conduct its own deployment of a State radio access network pursuant to section 6302(e)(2)(B) of the Middle Class Tax Relief and Job Creation Act of 2012 shall file a notification of its election with the Commission. Such notification shall also certify that the State has notified the First Responder Network Authority and the National Telecommunications and Information Administration of its election.

    (c) Filing of alternative State plans by States electing to opt out. No later than 180 days after filing notice of a State's election with the Commission under paragraph (b) of this section, the State Governor or the Governor's designee shall file an alternative plan with the Commission for the construction, maintenance, operation and improvements of the State radio access network. Such a plan shall demonstrate:

    (1) That the State will be in compliance with the minimum technical interoperability requirements developed under section 6203 of the Middle Class Tax Relief and Job Creation Act of 2012; and

    (2) Interoperability with the nationwide public safety broadband network.

    [FR Doc. 2016-22714 Filed 9-20-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2016-0096; 4500030115] Endangered and Threatened Wildlife and Plants; 90-Day Findings on 10 Petitions; Correction AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Correction.

    SUMMARY:

    On September 14, 2016, we, the U.S. Fish and Wildlife Service (Service), published a document in the Federal Register announcing 90-day findings on 10 petitions to list, reclassify, or delist fish, wildlife, or plants under the Endangered Species Act of 1973, as amended. That document included a not-substantial finding for the Fourche Mountain salamander. The finding contained an incorrect range State, Arizona, for this species; the correct range State is Arkansas. With this document, we correct that error. If you sent a comment previously, you need not resend the comment.

    DATES:

    Correction issued on September 21, 2016. To ensure that we will have adequate time to consider submitted information during the status reviews, we request that we receive information no later than November 14, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Andreas Moshogianis, (404) 679-7119. If you use a telecommunications device for the deaf, please call the Federal Information Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of September 14, 2016 (81 FR 63160), in FR Doc. 2016-22071, on page 63162, in the second column, correct the State under Species and Range from “Arizona” to “Arkansas”.

    Dated: September 14, 2016. Tina A. Campbell, Chief, Division of Policy, Performance, and Management Programs, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-22558 Filed 9-20-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0103; 4500030113] RIN 1018-AZ02 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Sonoyta Mud Turtle AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the Sonoyta mud turtle (Kinosternon sonoriense longifemorale), a native subspecies from Arizona in the United States and Sonora in Mexico, as an endangered species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this subspecies. The effect of this regulation will be to add this subspecies to the List of Endangered and Threatened Wildlife.

    DATES:

    We will accept comments received or postmarked on or before November 21, 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 November 7, 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-R2-ES-2016-0103, which is the docket number for this rulemaking. Then, 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-R2-ES-2016-0103; U.S. Fish & Wildlife Service Headquarters, 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:

    Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 9828 North 31st Ave. #C3, Phoenix, AZ 85051-2517, by telephone 602-242-0210 or by facsimile 602-242-2513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Act, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule. We will be providing a proposal to designate critical habitat for the Sonoyta mud turtle under the Act in the near future.

    Our proposed determination. This document proposes the listing of the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) as an endangered species. The Sonoyta mud turtle is currently a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding status of and threats to the Sonoyta mud turtle.

    The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors after taking into account those efforts to protect such species: (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. We have determined that Factors A (reduction or loss of water availability; reduction or loss of riparian habitat components; reduction or loss of invertebrate prey), C (nonnative predators), and E (climate change) are and will continue to affect the populations of Sonoyta mud turtle. The Act defines the term “species” to include any subspecies of fish or wildlife or plants.

    We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal. Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

    To provide the necessary and most up-to-date information and background on which to base our determination, we completed a Species Status Assessment Report for the Sonoyta mud turtle (SSA Report; Service 2016, entire), which is available online at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0103. The SSA Report documents the results of the comprehensive biological status review for the Sonoyta mud turtle and provides an account of the subspecies' overall viability through the forecasting of the condition of surviving populations into the future (Service 2016, entire). In the SSA Report, we summarized the relevant biological data, described the past, present, and likely future risk factors (causes and effects), and conducted an analysis of the viability of the subspecies. The SSA Report provides the scientific basis that informs our regulatory decision regarding whether this subspecies should be listed under the Act. This decision involves the application of standards within the Act, its implementing regulations, and Service policies (see Finding). The SSA Report contains the risk analysis on which this finding is based, and the following discussion is a summary of the results and conclusions from the SSA Report. Species experts and appropriate agencies provided input into the development of the SSA Report. Additionally, we will invite peer reviewers to provide a review of the SSA Report.

    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 the public, 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) The Sonoyta mud turtle's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

    (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 species, its habitat or both.

    (2) Factors that may affect the continued existence of the species, 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 species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (5) Information related to climate change within the range the Sonoyta mud turtle and how it may affect the species' habitat.

    (6) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.).

    (7) The following specific information on:

    (a) The amount and distribution of habitat for the Sonoyta mud turtle.

    (b) What areas, that are currently occupied and that contain the physical and biological features essential to the conservation of the Sonoyta mud turtle, should be included in a critical habitat designation and why.

    (c) Special management considerations or protection that may be needed for the essential features in potential critical habitat areas, including managing for the potential effects of climate change.

    (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

    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.

    Also 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 directs that determinations as to whether any species is a threatened or endangered 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 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, Arizona Ecological Services 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 within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown 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 have sought the expert opinions of at least three appropriate and independent specialists regarding 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 the Sonoyta mud turtle's biology, habitat, physical or biological factors, or threats. We are inviting comment from the peer reviewers during this public comment period.

    Previous Federal Actions

    We identified the Sonoyta mud turtle as a candidate species with a listing priority number (LPN) of 3 in the annual Candidate Notice of Review (CNOR) on September 19, 1997 (62 FR 49398). Candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. We reaffirmed the Sonoyta mud turtle's candidate status in subsequent annual CNORs (64 FR 57534, October 25, 1999; 66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69033, December 6, 2007; 73 FR 75175, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; and 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80585, December 24, 2015). In 2012, based on a change in the timing of the threat from the reduction of surface water to non-imminent, we changed the Sonoyta mud turtle LPN from 3 to 6, which reflects a subspecies with threats that are non-imminent and high in magnitude. We retained an LPN of 6 through the latest CNOR.

    On May 4, 2004, we received a petition from the Center for Biological Diversity and others (petitioners) requesting the Service to list 225 plants and animals as endangered under the Endangered Species Act, as amended (16 U.S.C. 1531 et seq.), including the Sonoyta mud turtle and to designate critical habitat. On September 9, 2011, the Service entered into two settlement agreements regarding species on the candidate list at that time (Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)). This proposed rule fulfills that requirement of those settlement agreements for the Sonoyta mud turtle. We will also be providing a proposal to designate critical habitat for the Sonoyta mud turtle under the Act in the near future.

    Background

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any of the five enumerated factors, and taking into account the effect of conservation measures. The Act defines the term “species” to include any subspecies of fish or wildlife or plants. We completed a comprehensive evaluation of the taxonomy, life history, ecology, and biological status of the Sonoyta mud turtle (Kinosternon sonoriense longifemorale), and we provide a thorough assessment of the species' overall viability in the SSA Report (Service 2016, pp. 4-5; available at http://www.regulations.gov and the Arizona Ecological Services Office https://www.fws.gov/southwest/es/arizona/).

    Summary of Biological Status and Threats

    The Sonoyta mud turtle is one of two recognized subspecies of Sonora mud turtle (Kinosternon sonoriense) and has been differentiated from the other subspecies based on morphometric (shape or form of organism) analysis of shell measurements and mitochondrial DNA analysis (Iverson 1981, p. 62; Rosen 2003, entire; Rosen et al. 2006, entire). The other subspecies, K. s. sonoriense, is commonly referred to as Sonora mud turtle. Figure 1 below depicts the location of each subspecies. The Sonoyta mud turtle is a dark, medium-sized freshwater turtle with a mottled pattern on the head, neck, and limbs. The Sonoyta mud turtle is an isolated, native endemic (found in certain areas) of southern Arizona and northern Sonora, Mexico. At Quitobaquito, annual survivorship of adults (7-12 years old) and juveniles (<7 years old) has been estimated by Rosen and Lowe (1996, p. 23) and Riedle et al. (2012, p. 187) with similar results. Male survivorship ranged from 0.83-0.95, female survivorship ranged from 0.85-0.95, and juvenile survivorship was lower than adult survivorship with a gradual transition to higher survivorship as turtles moved towards adulthood (Riedle et al. 2012, p. 187; Rosen and Lowe 1996, p. 23).

    EP21SE16.002

    Sonoyta mud turtles occur in areas of an arid environment that commonly experience drought and extreme heat (ambient temperatures can exceed 45 degrees Celsius (°C) (113 degrees Fahrenheit (°F))) and in order to survive and complete life-history functions need both perennial sources of water with aquatic vegetation and riparian areas with moist soil. Sonoyta mud turtles spend most of their time in water because water is essential to survival of individuals, as it provides food and prevents desiccation. Water is also needed to provide moisture for soil in riparian areas needed for nesting and estivation (spending time in a prolonged state of torpor or dormancy) during drought. Lastly, water with aquatic vegetation is needed to support invertebrate prey and provide shelter from predators. Sonoyta mud turtles are primarily opportunistic carnivores feeding on a variety of invertebrates that are on the bottom of ponds and streams or attached to submerged vegetation. In habitat with poor invertebrate fauna they will also feed on small vertebrates, carrion, and plants (Hulse 1974, pp. 197-198; Lovich et al. 2010, pp. 135-136; Rosen 1986, pp. 14 & 31; Rosen and Lowe 1996a, pp. 32-35; Stanila et al. 2008, p. 345).

    Sonoyta mud turtles are found in stream channels, and natural and manmade ponds. Water in ponds is supplied by either springs or human waste-water effluent. Aquatic habitat in ponds and stream channels is usually shallow (to 2 meters (m) (7 feet (ft)), with a rocky or sandy bottom and aquatic, emergent vegetation. Hatchlings, juveniles, and subadults prefer shallow water with dense aquatic vegetation and overhanging vegetation along the stream channel or pond margin that provides foraging opportunities as well as protection from predators. Adults prefer water with complex structure including overhanging vegetation along the stream channel or pond margin but also deeper sections of ponds where they forage for benthic invertebrates along the bottom.

    Terrestrial habitat of Sonoyta mud turtles is characterized by riparian vegetation with moist soil that surrounds a pond or lines a stream channel, and occurs along the banks of ponds and streams, as well as in intermittently dry sections of the stream channel itself. Sonoyta mud turtles in dry or low surface water reaches will either travel along intermittent dry sections of a stream channel to find water or they will estivate. Riparian vegetation provides some level of protection from predators while turtles are out of the water, and it also creates a microclimate that supports moist soil. Moist soil is needed to prevent desiccation of adults and juveniles while traveling between wetted sites or during estivation. Terrestrial estivation sites consist of depressions under vegetation, soil, or organic matter; in rock crevices; or in soil burrows under overhanging banks of streams or ponds. Sonoyta mud turtles can endure lack of surface water for a short time by estivating, but prolonged and recurrent estivation will reduce fitness and increase mortality over the long term. Riparian vegetation and corresponding moist soil are also needed for nest sites. In mid to late July through September, females leave the water briefly to lay eggs in terrestrial nests that maintain some level of moisture such as vegetation litter, soil burrows, or possibly even in rock crevices. The SSA Report has more detailed discussion of our evaluation of the biological status of the Sonoyta mud turtle and the influences that may affect its continued existence.

    The Sonoyta mud turtle was historically found only in the Rio Sonoyta basin in Arizona and Sonora, Mexico (Figure 3.1.1.a. in the SSA Report). There were likely four populations of the Sonoyta mud turtle distributed throughout the Rio Sonoyta basin in Arizona and Sonora (SSA Report Figure 3.1.1.b.). One population was located at Quitobaquito in southern Arizona in an area that is now within the Organ Pipe Cactus National Monument. This population is north of the Rio Sonoyta, but fossil spring deposits to the west of Quitobaquito Springs indicate that, during floods or in times of greater natural flow, water filled an adjacent wash and likely established a connection to the Rio Sonoyta (Miller and Fuiman 1987, p. 603). The other three populations occurred in distinct perennial reaches of the Rio Sonoyta in Sonora, Mexico, just south of the U.S.-Mexico border. These included the Papalote reach, Santo Domingo reach, and Sonoyta reach of Rio Sonoyta. The Rio Sonoyta probably flowed continuously for short periods during the wet season providing connectivity for mud turtles allowing for immigration and emigration and then retracted during the dry season. This assumption is based on our understanding of the historical literature of hydrological conditions in the period 1854-1936 (Rosen et al. 2010, p. 146). These three distinct perennial reaches of the Rio Sonoyta (Papalote reach, Santo Domingo reach, and Sonoyta reach) together likely provided 19-27 km (11.8-16.8 mi) of stream habitat for the Sonoyta mud turtle (Table 1.). This amount is estimated from measuring maps in the historical literature of hydrological conditions in the period 1854-1936 (Rosen et al. 2010, p. 146). The best available commercial and scientific data does not indicate any additional populations.

    Currently, there are five extant populations. The Quitobaquito Springs population in Organ Pipe Cactus National Monument, Arizona, is extant (National Park Service (NPS) 2015, p. 1). Populations in the Papalote reach and Sonoyta reach (now Xochimilco reach) of Rio Sonoyta are extant, but perennial water flow in their reaches are reduced. The historical population in the Santo Domingo reach of the Rio Sonoyta is now likely extirpated due to loss of perennial surface water (P. Rosen, pers. comm., 2016; Rosen 3004, pp. 4-5). The Sonoyta sewage lagoon and Quitovac populations in Mexico were historically unknown and recently found by Knowles et al. 2002 (p. 74) investigating potential new turtle habitats in and around the Rio Sonoyta basin. Turtles were reported in the Sonoyta sewage lagoon in October 2001 (Knowles et al. 2002, p. 4); turtles either dispersed there from the upstream Xochimilco reach or were released by humans soon after the sewage lagoon came into operation in 1994. The Sonoyta sewage lagoon population is in the town of Sonoyta adjacent to the Rio Sonoyta. The Sonoyta sewage lagoon is a settling pond for raw wastewater from the town of Sonoyta. Sonoyta mud turtles were also discovered in spring runs and ponds at Quitovac in March 2002 (Knowles et al. 2002, p. 72). Quitovac is located about 40 km (25 mi) southwest of the town of Sonoyta and outside of the Rio Sonoyta basin, in the Rio Guadalupe basin. It is unclear when this population was established, and geography suggests that the turtle population may have resulted from human introduction of turtles.

    The perennial water supporting all five turtle populations has been reduced, and all populations are small and isolated. Discharge from Quitobaquito springs has diminished by 42 percent over the past 35 years with 5,500 cubic feet (cf)/day average discharge measured in the period 1981-1992 down to 3,157 cf/day measured from 2005-present (Carruth 1996, pp. 13, 21; Peter Holm, pers. comm., 2016). Thus far, declining spring flow has been associated with < 30 centimeters (cm) (12 inches (in)) of surface water level decline at the pond, the depth of which ranges from 81 to 94 cm (32 to 37 inches). Today, the five Sonoyta mud turtle populations are isolated from one another even more than they used to be historically because the lengths of the distinct perennial reaches in the Rio Sonoyta have contracted. The perennial waters in these reaches have decreased by 80 to 92 percent from 19-27 km (11.8-16.8 mi) historically to approximately 1.5-5.5 km (0.9-3.4 mi) currently (Table 1. Historical and Current Population Data below, and Figure 3.1.1 of the SSA Report). Periodic movement between populations in the Rio Sonoyta basin may occur during periods of high rainfall, but the extent of immigration and emigration of turtles is unknown. However, we assume that movement among populations is rare to limited due to distances between populations coupled with limited hydrological connection. The Quitovac population is outside of the Rio Sonoyta watershed, in the Rio Guadalupe basin, and has no present-day hydrological connection to the Rio Sonoyta.

    Table 1 lists the status and condition of each population. We believe that the historical locations of the Sonoyta mud turtle occurred in the areas of the Rio Sonoyta basin that maintained perennial surface water via springs fed by ground water and that these locations may no longer have reliable water to support mud turtles (Paredes-Aguilar and Rosen 2003, p. 2; Rosen et al. 2010, p. 155).

    Table 1—Historical and Current Population Data of the Sonoyta Mud Turtle Location Land ownership Abundance Historical Current Distribution Historical Perennial stream
  • km (mi)
  • Current Perennial stream
  • km (mi)
  • Area
  • ha (ac)
  • Status
    AZ Quitobaquito Organ Pipe Cactus National Monument Several hundred in 1950s 2015 = 141 ± 25
  • Avg = 110 1
  • unknown 0.244
  • (−0.15)
  • <0.27
  • (0.67)
  • Extant.
    Mexico Rio Sonoyta: Papalote Reach (or the Agua Dulce) Mexican NPS, Rio Sonoyta, Pinacate Biosphere Reserve unknown 2003 = >100, low density
  • Now = unknown
  • 5-6
  • (3.1-3.7)
  • 1.5 to 3
  • (0.9-1.9)
  • pool size 2-4.5 m2
  • (22-48 ft2)
  • Extant.
    Santo Domingo Ejido Josefa Ortiz de Dominguez unknown 0 4-6
  • (2.5-3.7)
  • 0 Extirpated.
    Sonoyta Reach (reduced to Xochimilco Reach) Town of Sonoyta unknown 2002 = ~345
  • Now = unknown
  • 10-15
  • (6.2-9.3)
  • 0 to 2.5
  • (0-1.6)
  • pool size 10-48 m2
  • (107-516 ft2)
  • Extant.
    Rio Sonoyta Total 19-27
  • (11.8-16.8)
  • Sonoyta Sewage Lagoon Town of Sonoyta N/A N/A N/A N/A >5
  • (>12.3)
  • Extant.
    Quitovac Quitovac y su anexo el Chujubabi N/A 2002 = ~200 N/A N/A >1
  • (>2.5)
  • Extant.
    1 Estimates from Quitobaquito include adults only; no young-of-the-year are included. This average is from 2001 to 2015.

    For the Sonoyta mud turtle to maintain viability, its populations, or some portion of its populations, must be resilient enough to withstand stochastic events such as fluctuations in water levels, habitat modification, and introduction of nonnative predators. In a highly resilient Sonoyta mud turtle population, turtles are able to complete their life functions and breeding is successful enough to maintain a population that is able to withstand stochastic events. Influencing these population factors are elements of Sonoyta mud turtle habitat (surface water availability, amount of riparian habitat and benthic invertebrates, and lack of nonnative predators) that determine whether survivorship among age classes is achieved in Sonoyta mud turtle populations, thereby increasing the resiliency of populations. Population resiliency categories for the Sonoyta mud turtle are described in Table 3.3.1. of the SSA Report, and habitat factors used to develop these resiliency levels are discussed below and outlined in Table 3.4.2. of the SSA Report. As discussed below, water is the primary limiting factor, and, therefore, water drives the condition of each population.

    Representation in the form of genetic or ecological diversity is important to maintain the Sonoyta mud turtle's capacity to adapt to future environmental changes. Genetic investigations (Rosen 2003, pp. 8-13; Rosen et al. 2006, p. 10) indicate the subspecies exhibits some level of genetic diversity among populations at Quitobaquito, in the Papalote reach and the Xochimilco reach of the Rio Sonoyta, and at Quitovac. The population in the Sonoyta sewage lagoon was not sampled, so we have no information on genetics of this population. Exchange of genetic material between Quitobaquito and populations along the Rio Sonoyta is unlikely due to lack of hydrological connection. Exchange of genetic material among populations of the Rio Sonoyta is likely a rare event limited to instances when a mud turtle may move during the wet season if there are prolonged periods of precipitation that cause a high flow event along the Rio Sonoyta or connects these populations by providing stepping stones of wetted habitat through which mud turtles could move or disperse.

    The Sonoyta mud turtle historically occupied habitat in two ecological settings including cienegas (a spring that is usually a wet, marshy area at the foot of a mountain, in a canyon, or on the edge of a grassland where ground water bubbles to the surface) and streams, both supported by ground water via springs. Currently, there are still populations within stream habitat but all the cienegas have either dried completely or been modified from their natural state. There are also two manmade impoundments that were created to capture spring flow that now support Sonoyta mud turtles. Currently, the Sonoyta mud turtle exhibits genetic and ecological diversity. Maintaining representation in the form of genetic or ecological diversity is important to maintain the Sonoyta mud turtle's capacity to adapt to future environmental changes. The loss of Quitobaquito, Quitovac, and either Rio Sonoyta Papalote or Rio Sonoyta Xochimilco populations would reduce the representation for the species.

    Redundancy describes the ability of a species to withstand catastrophic events. Measured by the number of populations, their resiliency, and their distribution (and connectivity), redundancy gauges the probability that the species has a margin of safety to withstand or can bounce back from catastrophic events (such as a rare destructive natural event or episode involving one or more populations). The Sonoyta mud turtle needs multiple resilient populations spread over their range distributed in such a way that a catastrophic event will not result in the loss of all populations. Currently four of the populations are spread throughout a small area of the Rio Sonoyta basin, and one population is in the northern part of the Rio Guadalupe basin. It is possible that a catastrophic event such as severe drought could impact three of the five populations—Papalote reach, Xochimilco reach, and Quitobaquito. Conversely, catastrophic events such as disease would not likely impact multiple populations since the hydrological connection among populations is limited or nonexistent. While there could be rare or limited movement of individuals between populations, all populations are isolated in terms of one population being able to repopulate another should one be lost due to a catastrophic event.

    The Service evaluated the stressors affecting the conservation status of the Sonoyta mud turtle, which include water loss, loss of riparian habitat, amount of invertebrate prey, presence of nonnative species, and land management activities incompatible with maintaining needed habitat (such as dredging). Of these stressors, water loss caused by drought and ground water pumping, both of which are exacerbated by climate change, and changes to wastewater infrastructure are the primary activities impacting the Sonoyta mud turtle. The other stressors to the Sonoyta mud turtle include the loss of invertebrate prey and presence of nonnative species. These stressors can be additive in terms of effects to populations that are already stressed by water loss. The following is a summary of these stressors affecting the Sonoyta mud turtle. These stressors are described in detail in Appendix A of the SSA Report.

    Ground water pumping impacts the amount of surface water in habitats used by Sonoyta mud turtles because the perennial sections of the Rio Sonoyta as well as the pond at Quitobaquito and Quitovac are supplied by ground water. As with all streams, the Rio Sonoyta exists in an area where runoff has concentrated into a definable channel. In most of the Rio Sonoyta, the channel cuts into dry soils, so that flow is ephemeral and only in response to precipitation. In the Papalote and Xochimilco reaches of the Rio Sonoyta where Sonoyta mud turtles live, the defined channel intersects regional ground water held in storage, the ground water saturates streamside channel bottom soils, and water is discharged to the stream. In a hypothetical, unaffected system, equilibrium exists so that recharge and discharge volumes of water are equal. When pumping occurs in such a ground water system, it alters this equilibrium so that less water is available for discharge to the stream and springs and reduces the amount of surface water available to the Sonoyta mud turtle.

    Ground water can also reach the ground surface outside of a stream channel via springs like those that supply water to habitats of the Sonoyta mud turtle at Quitobaquito and Quitovac. Quitobaquito Springs is likely supplied by ground water but is considered somewhat isolated from the regional aquifer in the Sonoyta Valley (Carruth 1996, pp. 14, 18). It is possible that there is a connection between the two systems so that Quitobaquito Springs could experience a delayed effect by an increase in ground water drawdown occurring in Mexico (Carruth 1996, p. 21). Discharge from Quitobaquito Springs has diminished by 42 percent over the past 35 years with 5,500 cf/day average discharge measured from 1981-1992 down to 3,157 cf/day measured from 2005-present (Carruth 1996, pp. 13, 21; Peter Holm, pers. comm., 2016). Reasons for this decrease are unknown.

    Human demands on ground water in the Rio Sonoyta basin include agriculture and municipal use to support a growing population, both of which are almost wholly dependent on ground water. Irrigated agriculture is widespread in the Rio Sonoyta Valley, and continued development in the towns of Sonoyta and Lukeville is placing increased demands on limited ground water availability. Potential ground water use in the Rio Sonoyta watershed is greater than the estimated recharge rate. Based on total number of wells installed along the Rio Sonoyta, existing capacity for wells to withdraw water is six times the ground water recharge (Pearson and Connor 2000, p. 388). Although we do not have any recent observations of actual ground water use, we can assume that ground water pumping currently exceeds recharge based on negative trends of depth to ground water measured from 1992 to 2010 at Organ Pipe Cactus National Monument in wells that are close to the agricultural zone of Sonoyta, Sonora (OPCNM 2011, p. 8).

    At Quitovac, there are five springs that provide water to the impounded pond. The pond at Quitovac is used for watering small numbers of livestock and irrigating fruit trees (Aguirre and Rosen 2003, p. 11; USFWS files). One of the five springs at Quitovac was not flowing into the pond during a visit to the site in 2015 (D. Duncan, pers. obs., 2015). There has also been gold mining in the area surrounding Quitovac, and mine exploration and development continue, all of which require water. In addition, surface water diversion for agriculture has occurred in the past and is likely to continue into the future. The Quitovac population is in the Rio Guadalupe basin and, therefore, not likely affected by ground water pumping in the Rio Sonoyta. While ground water pumping could occur in this basin in the future, we currently have no information indicating the likelihood. Land management actions, such as dredging, also impact the Quitovac population. Partial dredging of the pond has occurred at least twice (Nabhan et al. 1982, p. 130; Nabhan 2008, p. 252; USFWS files). During a visit to the site on June 3, 2015, after the pond and spring heads had been completely excavated by dredging, only a single turtle with a damaged shell was found at the spring head (D. Duncan, pers. obs., 2015).

    The surface water necessary for habitat of the subspecies generally is fed by ground water recharge. This recharge comes from infiltration of precipitation along mountain fronts and in ephemeral channels. However, drought conditions that have persisted for the past 20 years have likely contributed to decreased ground water recharge in the Rio Sonoyta basin and Rio Guadalupe basin. Decreased precipitation and increased evaporation related to increased duration of drought conditions have contributed to reduced surface water available to support the subspecies at all population sites. Climate model projections predict a shift to increasing dryness in the Southwest as early as 2021-2040 (Seager et al. 2007, p. 1181). Streamflow is predicted to decrease in the Southwest even if precipitation were to increase moderately (Nash and Gleick 1993, State of New Mexico 2005, Hoerling and Eischeid 2007) because warmer surface air temperatures lead to increased evaporation, increased evapotranspiration, and decreased soil moisture. These three factors would lead to decreased streamflow even if precipitation increased moderately (Garfin 2005, Seager et al. 2007). The effect of decreased streamflow is that streams become smaller, intermittent, or dry, and thereby reduce the amount of habitat available for Sonoyta mud turtles. A smaller stream is affected more by air temperature than a larger one, exacerbating the effects of both warm and cold air temperatures (Smith and Lavis 1975). Although Sonoyta mud turtles evolved in an extremely arid climate and have survived drought in the past, it is anticipated that a prolonged, intense drought would affect all populations, in particular those occupying the Rio Sonoyta, which is likely to become entirely ephemeral.

    Habitat for the subspecies requires riparian vegetation, which is also dependent on surface water and ground water recharge. When ground water discharge is of sufficient volume to saturate streamside areas, riparian vegetation develops. This occurrence also extends to manmade ponds created to capture ground water discharge. The extent and persistence of this vegetation depends on the depth to ground water. In the case of the perennial sections of the Rio Sonoyta as well as the ponds at Quitobaquito and Quitovac, riparian vegetation has established where its root systems can reach the alluvial ground water. The use of water by the riparian vegetation (evapotranspiration) is itself a discharge of ground water, and can even affect surface flow in the adjacent stream or surface level in a pond. Because ground water extraction in the Rio Sonoyta basin continues to reduce depth to ground water, riparian vegetation has likely been reduced in the Rio Sonoyta, and streamside areas are now occupied by drought-tolerant plants, which generally lack the same ecological value of riparian vegetation.

    Riparian vegetation is associated with increased ecological site conditions; organic matter produced by plants is a major contributor to soil development, structure, and moisture. The below-ground component of riparian vegetation further enhances floodplain and bank water storage because root growth, and subsequent root decay, creates conditions that increase rates of infiltration of rainwater and floodwater, thereby enhancing ground water recharge and base-flow replenishment. Riparian vegetation, despite its own water use, also moderates the direct evaporation of water from a stream or pond. Open water in Sonoyta mud turtle habitats likely exhibits relatively high evaporation compared to areas shaded by riparian overstory (Goodrich et al. 2000, pp. 292-293). Riparian vegetation surrounding water features provides essential habitat for all life stages of turtles. As riparian vegetation dies due to declining ground water, the physical and biological processes are reversed and a cascade of interconnected impacts begins. Dead trees decompose and no longer stabilize floodplain soils, which are then readily eroded away. The loss of floodplain soils and their ability to store flood waters reduces the gradual release of post-flood infiltrated water back to the stream, further reducing surface flows. Reductions in riparian habitat will also decrease subsurface moisture needed for nesting sites; drought refuge for hatchlings, juvenile and adult turtles; and shelter from large flooding events for juvenile and adult turtles. Decreased riparian vegetation will lead to deterioration of the microclimate that provides soil moisture to nest sites and burrows. (See Section 4.2 and Appendix A of the SSA Report).

    In addition to loss of habitat associated with ground water pumping and drought in the Rio Sonoyta basin, changes to wastewater infrastructure in the town of Sonoyta have reduced surface water available in the Xochimilco reach of the Rio Sonoyta, but increased habitat for the subspecies in the Sonoyta sewage lagoon. Most of the wastewater that used to be discharged directly into the Xochimilco reach and provided a constant source of surface water that maintained perennial flow in this reach is now redirected to the Sonoyta sewage lagoon. Wastewater runoff is now likely limited to individual homesteads. Consequently, surface water available for Sonoyta mud turtles is greatly reduced in the Xochimilco reach of the Rio Sonoyta. It is likely that there is always a small pool of water in or near the dam site at Xochimilco, either from springs or urban wastewater from individual homesteads atop the arroyo wall. When wastewater that used to contribute surface water to the Xochimilco reach was redirected to the Sonoyta sewage lagoon, the amount of perennial water for Sonoyta mud turtles increased at the lagoon.

    Sonoyta mud turtles continue to persist at the Sonoyta sewage lagoon, and this site is not subject to effects of ground water withdrawal and drought due to a consistent inflow of wastewater. The Sonoyta sewage lagoon is within the floodplain of the Rio Sonoyta, and might contribute some level of recharge to the Rio Sonoyta basin through seepage and outflow. There is a high likelihood that the sewage lagoon in the town of Sonoyta will be replaced by a new wastewater treatment plant about 2.4 km (1.5 mi) northwest of the existing sewage lagoon in the next few years. Efforts will be made to translocate as many Sonoyta mud turtles as possible to the new wastewater facility from the sewage lagoon; however, it is unknown what amount this will be. The new wastewater treatment plant will serve an additional 35 percent of the town of Sonoyta's residences and will, therefore, be larger overall. However, the habitat available to Sonoyta mud turtles will be reduced by more than 75 percent. There will be a greater number of lagoons at the new wastewater treatment plant, but only one will be unlined and provide habitat for the Sonoyta mud turtle. Lining precludes the development of habitat for Sonoyta mud turtles including aquatic and riparian vegetation (See Figure 3.2.1 of the SSA Report). This unlined pond will provide less than 25 percent of the habitat that is currently present at the Sonoyta sewage lagoon.

    Effluent flowing through the new wastewater treatment facility will be discharged into the Rio Sonoyta. This activity could improve recharge of ground water and create perennial flow in the river immediately downstream of the new wastewater treatment plant, which in turn would provide additional habitat to the subspecies, although the extent is unknown. Based on the persistence of turtles at the Sonoyta sewage lagoon and increased wastewater volume to the new wastewater treatment plant, we would expect that turtles at the new wastewater treatment plant would also persist. Overall, wastewater from the town of Sonoyta will continue to provide a perennial water source that should continue to support one population of the Sonoyta mud turtle; however, since the available habitat is reduced by more than 75 percent, the population size will likely be reduced.

    Reduced surface water and associated decrease in riparian vegetation, regardless of the cause, shrinks overall habitat amount and quality causing crowding and increased competition for limited resources (Stanila 2009 p. 45). Lack of surface water for a short time outside the typical dry season may be endured by individual Sonoyta mud turtles periodically, but multiple years without sufficient perennial water will reduce fitness and increase mortality. Sonoyta mud turtles in drying pond habitats or low surface water reaches will burrow in banks to escape desiccation for a short period of time. After time, burrows themselves may become too dry, turtles will lose fat reserves due to lack of foraging opportunity, females may not have viable eggs due to lack of nutrition and fat reserves, and eventually turtles will die from either starvation or desiccation. Potential population level impacts from reduced surface water and drought include lower reproductive rates, reduced recruitment, reduced population growth rate, or changes in distribution.

    Decreasing availability of prey is another factor tied to surface water availability and corresponding loss of habitat that may impact the subspecies. We have very limited information on prey availability for the known populations of mud turtles. However, a reduction in surface water will impact the amount of aquatic invertebrate prey available and result in increased competition for prey. Aquatic invertebrates, the primary food source for Sonoyta mud turtles, need surface water and emergent vegetation to survive and complete their life-history functions. Water permanence will affect the diversity of invertebrate prey available for mud turtles, with ephemeral habitats having lower invertebrate diversity than intermittent or perennial habitats (Stanila 2009, p. 38). A reduction in water and emergent vegetation due to ground water pumping will reduce the amount of aquatic invertebrate prey for Sonoyta mud turtles. Adequate prey allows juvenile turtles to grow rapidly before becoming adults and allows adults to have sufficient lipid content to support reproduction. Poor body condition (i.e., low lipids) may be associated with lower clutch size (total number of eggs produced) and, therefore, lower population growth (Rosen and Lowe 1996, pp. 40-43).

    There are also native fish at Quitobaquito that may compete with turtles for invertebrate prey. Stomach analysis of turtles at Quitobaquito revealed animals were primarily consuming young shoots of bulrush even though benthic invertebrates were present in the aquatic system. Rosen and Lowe (1996, pp. 32, 41) thought that turtles may not be consuming invertebrates due to competition with native subspecies of desert pupfish (Cyprinodon macularius eremus) found at Quitobaquito. Desert pupfish are well known to feed on many of the same invertebrates that Sonoran mud turtles consume (Rosen and Lowe 1996, p. 41). Pupfish densities at Quitobaquito are similar or greater than the density used in an experimental pond study that demonstrated strong effects of desert pupfish on aquatic invertebrate abundance, so that competition between Sonoyta mud turtles and desert pupfish is plausible (Rosen and Lowe, p. 41).

    Similarly, like competition with desert pupfish, the establishment of nonnative aquatic vertebrate species may also affect future persistence of the Sonoyta mud turtle. Currently two of the five populations of Sonoyta mud turtles exist with some nonnative species present. Black bullheads and western mosquitofish were introduced to the Rio Sonoyta Papalote reach, and blue tilapia were introduced at Quitovac. These species are now established at these two sites (Rosen et al. 2010, pp. 153-154; Minkley et al. 2013, p. 289). All of these fish species likely compete with Sonoyta mud turtles for benthic invertebrates or alter the invertebrate community so that benthic invertebrates are reduced. Other nonnative aquatic species including American bullfrogs (Lithobates catesbeianus), crayfish (Orconectes spp. and Cherax spp.), large sunfish (centrarchids), and exotic turtles such as red-eared sliders (Trachemys scripta elegans) are not currently present in areas occupied by the Sonoyta mud turtle, but could be released and become established, as they have been in many Sonoran mud turtle populations in the United States (Fernandez and Rosen 1996, pp. 39-41; Hensley et al. 2010, pp. 175-176; Drost et al. 2011, p. 33).

    Bullfrogs, crayfish, large sunfish and catfish (ictalurids) are known to prey upon hatchling and juvenile Sonoran mud turtles. Crayfish, in particular, could decimate a population if introduced (Fernandez and Rosen 1996, pp. 41-43; Hensley et al. 2010, pp. 186-187). In addition, crayfish, African cichlid fishes including tilapia, western mosquitofish, and exotic turtles may also disrupt the food chain, which could alter the invertebrate community (Taylor et al. 1984, pp. 330-331; Fernandez and Rosen 1996, pp. 39-40; Duncan 2013, p. 1). This, in turn, could decrease type and amount of benthic invertebrate prey available to Sonoyta mud turtles (Fernandez and Rosen 1996, pp. 39-40) (See Section 4.4 and Appendix A of the SSA Report). In addition, turtles isolated in pools as a result of decreased surface water availability may be subject to increased predation from nonnative aquatic predators. Although we cannot specifically quantify effects to Sonoyta mud turtle populations now or in the immediate future we are highly confident that nonnatives are impacting the Papalote and Quitovac populations as described above. In addition, it is possible that in the near future the remaining three populations could become infested with the nonnative species listed above.

    In summary, ground water withdrawal and changes to wastewater infrastructure are highly likely to continue into the immediate future and to negatively affect base flow that supports three populations of the Sonoyta mud turtle basin. There is also the potential that Quitovac may be impacted by ground water losses in the future, although we are highly uncertain of this outcome. The sewage lagoon and new wastewater treatment plant are not likely to be impacted by ground water pumping, and may actually contribute to ground water recharge of the Rio Sonoyta. Ongoing and future drought periods are likely to continue and will affect the availability of water in both the United States and Mexico (See Section 4.1 and Appendix A of the SSA Report). In addition, drought is likely to be exacerbated by future climate change, decreasing water availability and increasing evapotranspiration losses.

    Effects from climate change are expected to impact all but one population of Sonoyta mud turtles (the sewage lagoon). Although we cannot specifically quantify effects to available surface water, we are highly confident that there will be a reduction in surface water due to ground water pumping and changes to wastewater infrastructure in addition to impacts from climate change. This reduction in surface water reduces or in some populations could eliminate habitat Sonoyta mud turtles need to survive desiccation or complete life-history functions as described above. Our assessment of water reduction in the SSA Report indicates that water loss is an immediate and high-magnitude threat to the species. Quitovac is likely to undergo partial dredging again (and possibly complete dredging), and nonnatives are likely to be introduced again. Nonnatives are still present in the Papalote reach, and it is likely, based on the spread of nonnatives, that all sites could receive nonnative species in the immediate future.

    Management actions undertaken by the National Park Service and Quitobaquito Rio Sonoyta Working Group have ameliorated many of the risks to the single Sonoyta mud turtle population in the United States at Organ Pipe Cactus National Monument, and, as explained below, these actions are expected to continue. The Quitobaquito Rio Sonoyta Working Group consists of biologists and managers from the National Park Service (NPS), Arizona Game and Fish Department, FWS, University of Arizona, Arizona Sonora Desert Museum, the National Commission of Natural Protected Areas in Mexico, and private citizens interested in conservation of aquatic native species in the Rio Sonoyta basin of Arizona and Sonora. Organ Pipe Cactus National Monument has already implemented numerous conservation measures recommended for the Sonoyta mud turtle by the Quitobaquito Rio Sonoyta Working Group. Since the 1970's the NPS has implemented conservation measures including trucking water, spring renovation, strengthening the dike that keeps water in the pond, re-lining parts of the pond, and removing bulrush, that have benefited the Quitobaquito population. Efforts by Organ Pipe Cactus National Monument eventually resulted in water levels in the pond stabilizing near historical norms.

    One risk that cannot be addressed at Organ Pipe Cactus National Monument is diminishing spring flow that supplies water to Quitobaquito Pond, as the cause is still unknown. (See Section 4.5 of the SSA Report). Per the National Park Service Organic Act (16 U.S.C. 1-4), the Organ Pipe Cactus National Monument will survey for, protect, and strive to recover all species native to national park system units. Based on their past conservation efforts at Quitobaquito, the NPS will continue conservation efforts to maintain water at Quitobaquito pond, to the extent within their power, as they have done since the 1950s and protect the Sonoyta mud turtle as they have since the late 1980s as this is a native species. Further, the endangered desert pupfish and designated critical habitat co-occurs with the Sonoyta mud turtle within the Quitobaquito pond. Some conservation actions to protect the desert pupfish and critical habitat will also protect the Sonoyta mud turtle and its aquatic habitat, as well as some of the riparian habitat surrounding Quitobaquito Springs.

    Quitobaquito Rio Sonoyta Working Group management actions in Mexico have included defining the ecological status and distribution of the Sonoyta mud turtle in Sonora, creating new habitat to replace lost habitat, removing nonnative aquatic species, and outreach. Primary actions included nonnative removal and fencing to prevent livestock. However, the fencing has been removed and nonnatives have been reintroduced by the locals. These management actions have not addressed most of the risks to the four populations of the Sonoyta mud turtle in Mexico (See Section 4.5, Management Actions, of the SSA Report). The Quitobaquito and Rio Sonoyta Working Group has been developing a conservation assessment and conservation agreement for five aquatic species for a number of years. This agreement is meant to promote the conservation of a number of species dependent on the aquatic and riparian habitats of the Rio Sonoyta watershed. The agreement would take the form of a Candidate Conservation Agreement. The Sonoyta mud turtle is a species listed in the conservation agreement; it would benefit from the conservation actions proposed. It is unclear when this agreement will be finalized.

    In the SSA, we described the viability of the species in a way that characterizes the needs of the species in terms of resiliency, redundancy, and representation. Resiliency is having sufficiently large populations for the species to withstand stochastic events. Stochastic events are those events arising from random factors such as fluctuations in water levels, habitat modification, or introduction of nonnative predators. Redundancy is having a sufficient number of populations for the species to withstand catastrophic events. A catastrophic event is a rare destructive event or episode involving one or more populations and occurring suddenly. Representation is having the breadth of genetic and ecological diversity for the species to adapt to changing environmental conditions. In the SSA Report, populations of the Sonoyta mud turtle having a low level of resiliency are not considered to contribute to the redundancy and representation of the subspecies due to low probability that the populations will persist.

    Currently, we consider the Quitobaquito and Sonoyta sewage lagoon populations of the Sonoyta mud turtle to have high resiliency, the Papalote reach population to have moderate resiliency, and the Xochimilco reach and Quitovac populations to have low resiliency. The Quitobaquito population occurs in an area of relatively good habitat and exhibits high survivorship among all age classes with increasing recruitment of juveniles. Resiliency of the four populations in Mexico is less certain as habitat has been greatly reduced in the Papalote and Xochimilco reaches, survivorship among age classes is unknown at the Sonoyta sewage lagoon due to lack of any surveys, and survivorship among age classes is unknown at Quitovac due to recent dredging of all of the aquatic habitat available for mud turtles. Current abundance of mud turtle populations in Mexico is unknown, and we have low confidence that numbers have remained stable.

    The viability of the Sonoyta mud turtle depends on maintaining multiple resilient populations over time. The resiliency of Sonoyta mud turtle populations depends on surface water availability, amount of riparian habitat and benthic invertebrates, and absence of nonnative competitors and predators. We expect the five extant Sonoyta mud turtle populations to experience changes to all of these aspects of their habitat, although it may be in different ways under the different conditions. Given our uncertainty regarding when habitats of the Sonoyta mud turtle will experience a reduction or elimination of surface water and corresponding loss of riparian habitat in the future, we forecasted future conditions of the Sonoyta mud turtle under three future plausible scenarios over three time periods (Chapter 5 of the SSA Report). These scenarios focus on surface water availability because this is the driving factor for the other variables impacting Sonoyta mud turtle populations—riparian habitat and prey. For example, if there is a somewhat reduced amount of surface water there would be a reduced amount or reduced quality of riparian area and prey. These factors in turn impact reproduction and recruitment, which drive the population growth. The three scenarios were:

    (1) Best Case—All habitats occupied by Sonoyta mud turtle experience no measurable drop in surface water and nonnatives are absent.

    (2) Moderate Case—Surface water in habitats occupied by Sonoyta mud turtle is somewhat reduced but not eliminated, and nonnatives remain at status quo.

    (3) Worst Case—All surface water at sites occupied by Sonoyta mud turtle is extremely reduced or eliminated, and nonnatives are present in all populations.

    We selected three useful timeframes for our forecasting: 7 years, 35 years, and 70 years. We chose 7 years based on the area's drought cycle, 35 years because it incorporates both the maximum lifespan of the species and the mid-century climate projections for the southwestern United States, and 70 years because it is within the range of the available drought and climate change model forecasts and is about twice the maximum lifespan of the species (Lenart 2008, entire; Stritthold et al. 2012, entire; Garfin et al. 2013, entire; P. Holms, 2016, pers. comm.). Within these timeframes, we considered the three different scenarios that spanned a range of potential conditions that we believe are important influences on the status of the species, and our results describe this range of possible conditions in terms of our projections of how many and where Sonoyta mud turtle populations will persist into the near term.

    We assessed the moderate-case scenario as the most likely to occur because this scenario is based on the threats identified above continuing at their current intensity and scale through the various time steps. This scenario projected the current level of stressors associated with the status quo conditions. The moderate-case scenario was the most likely to occur, as explained in the SSA. While full analyses of all scenarios are available in the SSA report, we are only presenting the full results of the moderate-case scenario here because it gives the most realistic projection of the future condition of the subspecies. The worst-case scenario was not found to be very likely because, as explained in the SSA, it is unlikely that all populations will lose all or most of their surface water. Conversely, the best-case scenario of improving conditions was found not to be very likely to occur because this scenario projected no reduction in surface water, which is an unlikely and unrealistic scenario given current climate change projections. Please refer to the SSA report (Service 2016, Chapter 5) for the full analysis of future scenarios.

    Under the moderate-case scenario within the 7-year timeframe, we expect the Sonoyta mud turtle's viability to be characterized by lower levels of resiliency, representation, and redundancy than it has currently, which is already reduced as described above. We expect populations at Xochimilco reach and Quitovac to have low population resiliency. In addition, we expect the Sonoyta sewage lagoon to have low population resiliency and its possible extirpation within 7 years. This possible outcome is dependent on exactly when the new wastewater treatment plant begins operating, which will replace the Sonoyta sewage lagoon. The new population at the new wastewater treatment plant will be stocked with animals from the Sonoyta sewage lagoon population. However, aquatic habitat at the new wastewater treatment plant is smaller than the sewage lagoon, and riparian habitat will essentially be nonexistent at first, so the population resiliency at the wastewater treatment plant is expected to be only moderate at the 7-year time step, whereas, the Sonoyta sewage lagoon currently has high population resiliency.

    We anticipate the population at Quitobaquito will be highly resilient and the Papalote reach will be moderately resilient at this time step. We expect the three populations with low resiliency, Sonoyta sewage lagoon, Xochimilco reach, and Quitovac, will have only some or few individuals that can complete life functions and breed successfully, and the populations are decreasing and not able to withstand stochastic events. Further, it is possible that one of the low-resiliency populations, Sonoyta sewage lagoon, will be extirpated by this time. Two of the three remaining populations are projected to be moderately resilient and will occur in highly managed habitats—the Quitobaquito population with a spring-fed pond and the wastewater treatment plant that is maintained by wastewater effluent. The Santo Domingo population is considered extirpated. We expect representation and redundancy will also be substantially reduced due to the three populations of low resiliency being functionally extirpated. This leaves three populations with only one being highly resilient and two being moderately resilient, including the wastewater treatment plant, which will be reduced in size from the sewage lagoon it is replacing.

    Table 2—Rio Sonoyta Mud Turtle Current and Near-Future Population Condition Country Population name Current
  • condition
  • Moderate-case scenario 7-year time step
    United States Quitobaquito High High. Mexico Papalote Reach (Agua Dulce) Moderate Moderate. Sonoyta Sewage Lagoon High Low. New Sonoyta wastewater treatment plant 0 Moderate. Xochimilco Reach (Sonoyta Reach) Low Low. Quitovac Low Low. Santo Domingo 0 0.
    Determination

    Section 4 of the Act, 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(b)(1)(a), the Secretary is to make endangered or threatened determinations required by section 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Per section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definition of endangered or of threatened, we determine whether any species is an endangered species or a threatened species because of any of the following five factors: (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; and (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.

    The fundamental question before the Service is whether the subspecies warrants protection as an endangered or threatened species under the Act. To make this determination, we evaluated extinction risk, described in terms of the current condition of populations and their distribution (taking into account the risk factors (i.e., threats, stressors) and their effects on those populations). For any species, as population conditions decline and distribution shrinks, the species' overall viability declines and extinction risk increases.

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Sonoyta mud turtle. Currently, there are five extant populations, and all are significantly isolated from one another such that recolonization of areas previously extirpated or areas that may be extirpated is extremely unlikely. Expert input provided during the development of the SSA Report indicated that, under the current situation for the five currently occupied sites, connectivity or movement among the populations is a rare occurrence. The species' range has been reduced by 80 to 92 percent in the Rio Sonoyta (Factor A) in Mexico, and current distribution is limited to five populations in three ponds totaling <7 ha (<15.5 ac) and two perennial sections of the Rio Sonoyta totaling 1.5 to 5.5 km (0.9 to 3.4 mi). Two historical populations are extirpated due to loss of perennial water. There are two newly discovered extant populations in addition to the three historical populations that remain. Only three of these populations are of sufficient resiliency to withstand stochastic events.

    Habitat loss from anthropogenic ground water withdrawals and long-term drought is occurring rangewide and is likely to continue and increase in the near term (Factor A; Factor E). This reduction in water restricts the limited available habitat and decreases the resiliency of the Sonoyta mud turtle within those habitats. We find that ongoing drought is likely to continue and be exacerbated by climate change, decreasing water availability and increasing evapotranspiration losses (Factor A). This threat is ongoing, rangewide, and expected to increase in the future. Predation by nonnative aquatic species has occurred at two sites in Mexico, although there is uncertainty with regard to the population effects (Factor C). Predation by nonnative aquatic species has been shown to reduce recruitment and population size of other populations of Sonora mud turtle and it is likely to occur in Sonoyta mud turtle populations in the future. The Quitovac population's current habitat was just recently completely dredged, and the status of Sonoyta mud turtles is unknown. Partial dredging in the near term is likely based on past dredging activity. It is reasonably likely that a catastrophic event could occur anytime within the initial 7-year time step analyzed in the SSA Report and that current population resiliency and redundancy are inadequate to maintain population viability.

    The implementation of the conservation measures by the National Park Service and the Quitobaquito Rio Sonoyta Working Group has resulted in maintaining the only Sonoyta mud turtle population in the United States and reduces the risk of loss of at least one population in Mexico. However, the conservation measures do not alleviate the threats that are influencing the resiliency, redundancy, and representation of the Sonoyta mud turtle across its range (as described above).

    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.” Based on the information presented in the SSA Report for the Sonoyta mud turtle, and the discussion above, we find that the best available scientific and commercial information indicates that the Sonoyta mud turtle is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently impacting the species. The overall range has been significantly reduced; the limited remaining habitat and populations are currently threatened by an increase in ground water pumping, which results in reduced spring flows and, therefore, reduced surface water. Reduced surface water results in reduced aquatic habitat for the subspecies where they spend the majority of their time and is needed to avoid desiccation. Further, the reduction in surface water impacts aquatic vegetation used by the Sonoyta mud turtle for cover and by their prey species. Lastly, the reduction in ground water reduces the soil moisture of the riparian area resulting in habitat that is too dry for Sonoyta mud turtles to use for estivation and nesting.

    These factors acting in combination reduce the overall viability of the species. The risk of extinction is high because the five remaining populations are small, isolated, and have limited, if any, potential for recolonization. The estimated current and near-term future conditions of the known Sonoyta mud turtle populations as described in the SSA Report lead us to find that the condition and distribution of populations do not provide sufficient resiliency, redundancy, and representation for this subspecies; therefore, we find that the subspecies meets the definition of an endangered species under the Act. Accordingly, on the basis of the best available scientific and commercial information, we propose listing the Sonoyta mud turtle as endangered in accordance with sections 3(6) and 4(a)(1) of the Act.

    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 the Sonoyta mud turtle is endangered 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 37577, July 1, 2014).

    We find that a threatened species status is not appropriate for the Sonoyta mud turtle because of the existing contracted range (loss of 80-92 percent of its historic range in Mexico) compared to the historical range, the primary threats are occurring rangewide and are not localized, and the threats are impacting the species now and are ongoing. We find the Sonoyta mud turtle to be in danger of extinction now.

    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. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of 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. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Arizona Ecological Services 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 water availability and associated 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, and, in the case of the Sonoyta mud turtle, cooperation with our counterparts in Mexico. If this species 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 Arizona would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Sonoyta mud turtle. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the Sonoyta mud turtle 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 species. Additionally, we invite you to submit any new information on this species 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 species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the National Park Service (Organ Pipe Cactus National Monument); issuance of section 404 Clean Water Act permits by the Army Corps of Engineers; and construction and maintenance of roads or highways by the U.S. Customs and Border Protection of the Department of Homeland Security.

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

    We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    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. At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the Sonoyta mud turtle sites where the species currently occurs are subject to a variety of potential activities, and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species. Additionally, most activities subject to consultation include direct effects to the species and/or the aquatic and riparian habitats to which it is inextricably tied. It is difficult to predict an activity already subject to consultation that would not result in anticipated take of individual Sonoyta mud turtles.

    Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

    (1) Unauthorized handling or collecting of the species.

    (2) Destruction/alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, removal or destruction of emergent aquatic vegetation; or diversion or alteration of surface or ground water flow into or out of the wetland (i.e., due to roads, impoundments, discharge pipes, stormwater detention basins, etc.) or in any body of water in which the Sonoyta mud turtle is known to occur.

    (3) Direct or indirect destruction of riparian habitat.

    (4) Introduction of nonnative species that compete with or prey upon the Sonoyta mud turtle, such as the introduction of nonnative fish and crayfish species.

    (5) Release of biological control agents that attack any life stage of this species.

    (6) Discharge of chemicals or fill material into any waters in which the Sonoyta mud turtle is known to occur.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    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).

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.

    Based on cultural claims maps and reservation boundaries we have on file, the distribution of the Sonoyta mud turtle overlaps areas that may be of interest to the following tribes: Tohono O'odham Nation, Quechan Tribe, Hopi Tribe, Colorado River Indian Tribes, and Cocopah Indian Tribe. On November 20, 2015, we notified these tribes via letter of our intent to conduct a status assessment for the purpose of determining whether the subspecies warrants protection under the Act. In our letter we offered to meet with the tribe to discuss the process, potential impacts to the tribes, and how tribal information may be used in our assessment. In addition, we requested any information they have regarding the subspecies. To date we have not received a response from these any of these tribes. Upon publication of this proposed rule we will send notification letters to these tribes and again extend an invitation to meet and discuss.

    References Cited

    A complete list of references cited in this rulemaking is available in the SSA Report (U.S. Fish and Fish and Wildlife Service. 2016. Species status assessment report for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale), Version 1.0. Albuquerque, NM) that is available on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2016-0103, at https://www.fws.gov/southwest/es/arizona/, and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the Arizona Ecological Services Field 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—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.

    2. In § 17.11(h), add an entry for “Turtle, Sonoyta mud” to the List of Endangered and Threatened Wildlife in alphabetical order under REPTILES to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Reptiles *         *         *         *         *         *         * Turtle, Sonoyta mud Kinosternon sonoriense longifemorale Wherever found E [Federal Register citation when published as a final rule.] *         *         *         *         *         *         *
    Dated: September 7, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-22754 Filed 9-20-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [4500090022] Endangered and Threatened Wildlife and Plants; 12-Month Findings on Petitions To List Nine Species as Endangered or Threatened Species AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of 12-month petition findings.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce 12-month findings on petitions to list nine species as endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that listing the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii (northern wormwood), Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel is not warranted at this time. However, we ask the public to submit to us at any time any new information that becomes available concerning the stressors to any of the nine species listed above or their habitats.

    DATES:

    The findings announced in this document were made on September 21, 2016.

    ADDRESSES:

    These findings are available on the Internet at http://www.regulations.gov at the following docket numbers:

    Species Docket No. Angular dwarf crayfish FWS-R4-ES-2011-0049 Guadalupe murrelet FWS-R8-ES-2016-0081 Huachuca springsnail FWS-R2-ES-2016-0082 Kentucky cave beetles (Clifton Cave and Icebox Cave beetles) FWS-R4-ES-2016-0032 Artemisia campestris var. wormskioldii (Northern wormwood) FWS-R1-ES-2016-0083 Scripps's murrelet FWS-R8-ES-2016-0084 Virgin Islands coquí FWS-HQ-ES-2013-0125 Washington ground squirrel FWS-R1-ES-2016-0085

    Supporting information used to prepare these findings is available for public inspection, by appointment, during normal business hours, by contacting the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT. Please submit any new information, materials, comments, or questions concerning these findings to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    Species Contact information Angular dwarf crayfish Cary Norquist, Field Supervisor, Mississippi Ecological Services Field Office, 601-965-4900. Guadalupe murrelet Steve Henry, Field Supervisor, Ventura Fish and Wildlife Office, 805-644-1766. Huachuca springsnail Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 602-242-0210. Kentucky cave beetles (Clifton Cave and Icebox Cave beetles) Lee Andrews, Field Supervisor, Kentucky Ecological Services Field Office, 502-695-0468. Artemisia campestris var. wormskioldii (Northern wormwood) Brad Thompson, Deputy State Supervisor, Washington Fish and Wildlife Office, 360-753-6046. Scripps's murrelet Steve Henry, Field Supervisor, Ventura Fish and Wildlife Office, 805-644-1766. Virgin Islands coquí Janine Van Norman, Chief, Branch of Foreign Species, Headquarters Ecological Services Office, 703-358-2171. Washington ground squirrel Paul Henson, Field Supervisor, Oregon Fish and Wildlife Office, 503-231-6179; Eric Rickerson, Field Supervisor, Washington Fish and Wildlife Office, 360-753-9440.

    If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1533) requires that, within 12 months after receiving any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information indicating that listing an animal or plant species may be warranted, we make a finding (“12-month finding”). In this finding, we determine whether listing the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii (northern wormwood), Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel is: (1) Not warranted; (2) warranted; or (3) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened species, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants (warranted but precluded). Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register.

    Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered or a threatened species based on any of the following five factors:

    (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.

    We summarize below the information on which we based our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii, Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel meet the definition of an endangered or threatened species. More detailed information about these species is presented in the species-specific assessment forms found on http://www.regulations.gov under the appropriate docket number (see ADDRESSES, above).

    In considering what stressors under the five factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat. In that case, we determine if that stressor rises to the level of a threat, meaning that it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. The mere identification of stressors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these stressors are operative threats to the species and its habitat, either singly or in combination, to the point that the species meets the definition of an endangered or a threatened species under the Act.

    In making our 12-month findings, we considered and evaluated the best available scientific and commercial information regarding the past, present, and future stressors and threats. We reviewed the petition, information available in our files, other available published and unpublished information. This evaluation may include information from recognized experts, Federal, State, tribal, academic, foreign governments, private entities, and the public.

    Angular Dwarf Crayfish (Cambarellus (Pandicambarus) lesliei) Previous Federal Actions

    On April 20, 2010, we received a petition dated April 20, 2010, from the Center for Biological Diversity, The Alabama Rivers Alliance, The Clinch Coalition, Dogwood Alliance, The Gulf Restoration Network, Tennessee Forests Council, and The West Virginia Highlands Conservancy requesting that we list 404 species, including the angular dwarf crayfish (Cambarellus (Pandicambarus) lesliei) as an endangered or threatened species under the Act and designate critical habitat for the species. The petition included supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and potential causes of decline. On September 27, 2011 (76 FR 59836), we published a partial 90-day finding on the petition. In that document, we announced our finding that the petition presented substantial scientific or commercial information indicating that listing the angular dwarf crayfish may be warranted, and we initiated a status review for the species.

    Background

    The angular dwarf crayfish is one of the smallest crayfish in the northern hemisphere, with adults usually less than 25 millimeters (mm) (1.0 inches (in)) long. The species was described from a slow-moving stream “0.5 mi S of Alabama Port, Mobile County, Alabama” by J. F. Fitzpatrick, Jr. and B. A. Laning in 1976. The angular dwarf crayfish is considered a valid species and meets the Act's definition of a species.

    This species has been collected from heavily vegetated ponds, slow-moving streams, and backwater areas, and the principal habitat feature appears to be the presence of dense, submerged aquatic vegetation. Little is known about the life history of the angular dwarf crayfish. Fitzpatrick and Laning (1976) observed egg-bearing females in February, April, and June, and females-with-young in both April and June, and they concluded that the species was a year-round breeder. However, they also believed that females did not produce eggs annually. Form I males have been found in February, April, June, August, October, and November.

    There is no information on the historical distribution of the angular dwarf crayfish. The known range of the species has expanded with limited collection efforts since the species was described in 1976 using specimens collected in Alabama. It is currently known from 4 localities within, or relatively close to, the Pascagoula River in George County, Mississippi, and 27 localities in the lower Alabama and lower Tombigbee River systems, the Mobile-Tensaw Delta, and Mobile Bay tributaries in Baldwin, Mobile, and Washington Counties, Alabama. The population in Mississippi appears to be disjunct from the Alabama population, but this is possibly an artifact of inadequate collecting effort. The angular dwarf crayfish is difficult to collect and is likely often overlooked. There are limited population and demographic data available for the angular dwarf crayfish.

    Summary of Status Review

    Potential stressors for the angular dwarf crayfish were identified in the petition as direct alterations of waterways such as impoundment, diversion, dredging and channelization, and draining of wetlands; and land-use activities such as development, agriculture, logging, and mining. A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) for the angular dwarf crayfish provides a summary of the literature and information regarding distribution, habitat requirements, life history, and stressors, as well as an analysis of the stressors to the species. We were unable to find any direct link between landscape-level stressors and the conservation status of the angular dwarf crayfish. Information acquired during our status review indicated that the angular dwarf crayfish continues to persist throughout its limited historical range, and that its known range has expanded due to recent survey efforts. In addition, the species is difficult to collect and identify, and additional populations are likely to be present within the currently known range.

    Our review of the best available scientific and commercial information revealed that the angular dwarf crayfish is poorly understood and additional research is needed to more thoroughly define range, abundance, and population trends. However, during our status review, we did not identify any specific stressors that registered as threats to the species or its habitat throughout its currently known range, or within a significant portion of that range. We found no evidence that the species has experienced curtailment of range or habitat, or is affected by disease or predation, commercial or recreational harvest, the inadequacy of existing regulations, or any other natural or manmade factor.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors potentially acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the angular dwarf crayfish is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range. Because the distribution of the species is narrow and stressors are similar throughout the entire species' range, we found no concentration of stressors that suggests the angular dwarf crayfish may be in danger of extinction in any portion of its range. This finding is based on the continued presence of the species within its historical range, the expansion of the species' known range with limited survey efforts, and the absence of any direct link between the landscape-level stressors identified in the petition and the conservation status of the angular dwarf crayfish throughout its currently known range, or within a significant portion of that range.

    Therefore, we find that listing the angular dwarf crayfish as an endangered or threatened species is not warranted throughout all or a significant portion of its range at this time. This document constitutes the Service's 12-month finding on the April 20, 2010, petition to list the angular dwarf crayfish as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the angular dwarf crayfish's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Guadalupe Murrelet (Synthliboramphus hypoleucus) Previous Federal Actions

    On April 16, 2002, we received a petition dated April 8, 2002, from the Pacific Seabird Group to list the Xantus's murrelet (Synthliboramphus hypoleucus) as a threatened species. In our 2004 annual review of species that are candidates for listing under the Act (also called a candidate notice of review or CNOR) published in the Federal Register on May 4, 2004 (69 FR 24876), we added the Xantus's murrelet to our list of candidate species and assigned it a listing priority of 5 (high magnitude of nonimminent threats), and determined that listing the Xantus's murrelet was warranted but precluded by higher priority listing actions. We published subsequent warranted-but-precluded findings in later 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; and 80 FR 80584, December 24, 2015).

    Background

    At the time of the petition, the Xantus's murrelet (Synthliboramphus hypoleucus) was recognized as having two subspecies, S. h. hypoleucus and S. h. scrippsi. However, information received since the petition suggested the two subspecies should be recognized as distinct species, the Guadalupe murrelet (S. hypoleucus) and the Scripps's murrelet (S. scrippsi). In 2012, the American Ornithologists Union (AOU) approved the elevation of the two subspecies to full species status. Incorporating this taxonomic change into the petitioner's request, we evaluated the two (newly recognized) species separately.

    The Guadalupe murrelet is a small diving seabird, approximately 23-25 centimeters (9-10 inches) in length and weighing 148-187 grams (5-7 ounces). The at-sea distribution of the species occurs up to 600 kilometers (373 miles) off the coast of southern British Columbia, Canada, south to Baja California Sur, Mexico. Guadalupe murrelets are confirmed to nest on Guadalupe Island and on the San Benito Islands (comprised of San Benito Oeste, San Benito Medio, and San Benito Este) off the west coast of Baja California, Mexico. A historical breeding site with limited birds was observed on Santa Barbara Island, California, but is no longer in use.

    Summary of Status Review

    In our current assessment of the status of the species, we developed a Species Status Assessment report (SSA report) outlining the stressors potentially impacting Guadalupe murrelets and their habitat (Species Report—Scripps's Murrelet (Synthliboramphus scrippsi) and Guadalupe Murrelet (Synthliboramphus hypoleucus)). We consider the SSA report to be the compilation of the best available scientific and commercial information on the status of the Guadalupe murrelet and its habitat. The stressors we evaluated in the species report include: (1) Native predators; (2) nonnative predators; (3) introduced mammals (sheep, goats, cattle, pigs, rabbits, and hares); (4) guano mining; (5) human disturbance; (6) artificial lighting; (7) fishing activity; (8) prey availability; (9) off-shore natural gas exploration and extraction activities; (10) oil pollution; (11) the effects of climate change; and (12) the effects of small population size.

    In our assessment, we acknowledge that the Guadalupe murrelet probably underwent steep declines as a result of predation and habitat destruction in the early to mid-1900s, as evidenced by anecdotal and observed accounts. However, no extirpations or steep declines have been observed within the last 40 years, and population numbers remain stable based on the limited survey information. Residual effects from habitat modification and displacement from potential breeding habitat may still be occurring. However, we anticipate that these residual effects will decrease in the future as vegetation recovers naturally and birds slowly move back into previously used breeding habitat. All nonnative predators have been removed from the San Benito Islands. Cats do still occur on the main Guadalupe Island, but only impact a small population of Guadalupe murrelets as the majority nest on off-shore rocks and islets. Some eradication efforts have been conducted, and fencing has been installed around known seabird nesting areas on Guadalupe Island since 2003. Additional conservation efforts include designation of Guadalupe Island as a Biosphere Reserve in June 2005, by the Government of Mexico. Since 2011, there has been a management plan in place on Guadalupe Island, implementing measures to restrict access, limit existing human activity, and provide measures for restoration and conservation of endemic species and their habitats.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors impacting the species have either been eliminated or reduced to the point where they are not of sufficient imminence, intensity, or magnitude, either singularly or cumulatively, to indicate that the Guadalupe murrelet is currently in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species) throughout all or a significant portion of its range. This is based on the relatively stable population and distribution of the species and the fact that conservation management is occurring throughout the species' range to minimize impacts to both the habitat and individuals.

    In considering any significant portion of the range of this species, we evaluated whether the stressors facing Guadalupe murrelet might be geographically concentrated in any one portion of its range and whether these stressors manifest as threats to Guadalupe murrelet such that it would be presently in danger of extinction throughout all of the species' range. We found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. As a result, we find that factors affecting Guadalupe murrelet are essentially uniform throughout its range, indicating no portion of the range warrants further consideration of possible endangered or threatened status under the Act.

    Therefore, we find that listing the Guadalupe murrelet as an endangered or threatened species or maintaining the species as a candidate under the Act is not warranted at this time, and consequently we are removing it from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Guadalupe murrelet, and constitutes the Service's 12-month finding on the April 8, 2002, petition to list the Guadalupe murrelet as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Guadalupe murrelet's species-specific assessment form, the SSA report, and other supporting documents (see ADDRESSES, above).

    Scripps's Murrelet (Synthliboramphus scrippsi) Previous Federal Actions

    On April 16, 2002, we received a petition dated April 8, 2002, from the Pacific Seabird Group to list the Xantus's murrelet (Synthliboramphus hypoleucus) as a threatened species. In our 2004 CNOR, published in the Federal Register on May 4, 2004 (69 FR 24876), we added the Xantus's murrelet to our list of candidate species and assigned it a listing priority of 5 (high magnitude of nonimminent threats), and determined that listing the Xantus's murrelet was warranted but precluded by higher priority listing actions. We published subsequent warranted-but-precluded findings in later 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; and 80 FR 80584, December 24, 2015).

    Background

    At the time of the petition, the Xantus's murrelet (Synthliboramphus hypoleucus) was recognized as having two subspecies, S. h. hypoleucus and S. h. scrippsi. However, information since the petition suggested the two subspecies should be recognized as distinct species, the Guadalupe murrelet (S. hypoleucus) and the Scripps's murrelet (S. scrippsi). Incorporating this taxonomic change into the petitioner's request, we evaluated the two (newly recognized) species separately.

    The Scripps's murrelet is a small diving seabird, approximately 23-25 centimeters (9-10 inches) in length and weighing 148-187 grams (5-7 ounces). The at-sea distribution of the species occurs up to 600 kilometers (373 miles) off the coast of southern British Columbia, Canada, south to Baja California, Mexico. Scripps's murrelets are confirmed to nest on the Channel Islands (San Miguel, Santa Cruz, Anacapa, Santa Barbara, Santa Catalina, and San Clemente Islands) off the California coast and on several islands off the coast of Baja California, Mexico (Coronado, Todos Santos, San Jeronimo, and San Benito Islands). The species is present on the island of San Martin, Mexico, but there is no confirmed breeding.

    Summary of Status Review

    In our current assessment of the status of the species, we developed a SSA report outlining the stressors potentially impacting Scripps's murrelets and their habitat (Species Report—Scripps's Murrelet (Synthliboramphus scrippsi) and Guadalupe Murrelet (Synthliboramphus hypoleucus). We consider the SSA report to be the compilation of the best available scientific and commercial information on the status of the Scripps's murrelet and its habitat. The stressors we evaluated in the species report include: (1) Native predators; (2) nonnative predators; (3) introduced mammals (sheep, goats, cattle, pigs, rabbits, and hares); (4) guano mining; (5) human disturbance; (6) artificial lighting; (7) fishing activity; (8) prey availability; (9) off-shore natural gas exploration and extraction activities; (10) oil pollution; (11) the effects of climate change; and (12) the effects of small population size.

    In our assessment, we acknowledge that the Scripps's murrelet probably underwent steep declines as a result of predation and habitat destruction in the early to mid-1900s as evidenced by anecdotal and observed accounts; however, no extirpations or steep declines have been observed within the last 40 years and populations numbers remain stable, based on the limited survey information. Population numbers of Scripps's murrelet have rebounded on Santa Barbara Island and Anacapa Island after the removal of nonnative predators and habitat restoration (both natural and prescripted), and now make up over 40 percent of the breeding population for the species. Residual effects from habitat modification and displacement from potential breeding habitat may still be occurring. However, we anticipate that these residual effects will decrease in the future as vegetation recovers naturally and birds slowly move back into previously used breeding habitat. All nonnative predators have been removed from all breeding and nonbreeding islands. Additional conservation efforts include restrictions of human activity near breeding areas on the Channel Islands and designation of several of the islands off the coast of Baja California as natural reserves by the Government of Mexico. These measures restrict access and limit human activity and provide measures for restoration and conservation of endemic species.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors impacting the species have either been eliminated or reduced to the point where they are not of sufficient imminence, intensity, or magnitude to indicate that the Scripps's murrelet is currently in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range. This is based on stable or increasing populations and distribution of the species and the fact that conservation management is occurring throughout the species' range for both impacts to habitat and individuals.

    In considering any significant portion of the range of this species, we evaluated whether the stressors facing Scripps's murrelet might be geographically concentrated in any one portion of its range and whether these stressors in a portion of its range manifest as threats to Scripps's murrelet such that it would be presently in danger of extinction throughout all of the species' range. We found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. As a result, we find that factors affecting Scripps's murrelet are essentially uniform throughout its range, indicating no portion of the range warrants further consideration of possible endangered or threatened status under the Act.

    Therefore, we find that listing the Scripps's murrelet as an endangered or threatened species or maintaining the species as a candidate under the Act is not warranted at this time, and consequently we are removing this species from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Scripps's murrelet, and constitutes the Service's 12-month finding on the 2002 petition to list the Scripps's murrelet as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Scripps's murrelet's species-specific assessment form, the SSA report, and other supporting documents (see ADDRESSES, above).

    Huachuca Springsnail (Pyrgulopsis thompsoni) Previous Federal Actions

    We designated the Huachuca springsnail as a Category 2 candidate in the Animal Notice of Review published in the Federal Register on January 6, 1989 (54 FR 554). Category 2 candidate species were those species for which listing as an endangered species or a threatened species was possibly appropriate, but for which biological information sufficient to support a proposed rule was lacking. The February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories and in that document we designated the Huachuca springsnail a candidate species as currently defined. On May 11, 2004, we received a petition dated May 4, 2004, from the Center for Biological Diversity, requesting that we list 225 plants and animals, including the Huachuca springsnail, as endangered species under the Act and designate critical habitat. In response to the May 4, 2004, petition to list the Huachuca springsnail as an endangered species, we published a warranted-but-precluded 12-month finding in the Federal Register on May 11, 2005 (70 FR 24870). We published subsequent warranted-but-precluded 12-month findings in later CNORs (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; and 80 FR 80584, December 24, 2015).

    Background

    The Huachuca springsnail is a small (1.7 to 3.2 millimeters (0.07 to 0.13 inches)) aquatic snail (class Gastropoda; subclass Rissooidea; family Hydrobiidae) endemic to Santa Cruz and Cochise Counties in southeastern Arizona and adjacent portions of northern Sonora, Mexico. There are an estimated 29 historical spring ecosystem sites (23 on Federal land, 4 on private land, 2 in Mexico), of which 23 are confirmed as occupied sites. The Huachuca springsnail is most commonly found in rheocrene ecosystems (water emerging from the ground as a flowing stream) where proximity to spring vents plays a key role in their life history. Most information regarding Huachuca springsnail life history is derived from closely related congeners or other members of the Hydrobiidae family. Springsnails are gill-breathing and have an entirely benthic life cycle with a typical lifespan of about one year. Female springsnails are noticeably larger than males and are oviparous (egg-laying), and reproduction occurs throughout the year in warm water and seasonally in colder environments. Springsnails are known to feed primarily on periphyton, which is a complex mixture of algae, detritus, bacteria, and other microbes that live upon submerged surfaces in aquatic environments. Due to their small size, springsnail mobility is limited and significant dispersal events are unlikely to occur. Suitable habitat for springsnails includes spring ecosystems that produce running water with firm substrates characterized by cobble, gravel, woody debris, and aquatic vegetation.

    Summary of Status Review

    The SSA report for the Huachuca springsnail provides a summary of the information assembled and reviewed by the Service and incorporates the best available scientific and commercial information for this species. In the SSA report, we evaluated the potential stressors that could be affecting Huachuca springsnail populations. Those stressors that could meaningfully impact the status of the species include: (1) Reduction of spring discharge; (2) springhead modification; (3) conversion from lotic (flowing water) to lentic (standing water) systems; (4) aquatic vegetation management; (5) water contamination; (6) predation; and (7) competition. We evaluated each of these factors for their potential to have population- and species-level effects to the Huachuca springsnail (for further information, please refer to the Huachuca springsnail SSA report). Many of these stressors are ameliorated by ongoing conservation efforts. The majority of springs that are occupied by the Huachuca springsnail are on Federal lands where there are some existing protections in place related to general land use plans (Department of Defense and U.S. Forest Service). In addition, a candidate conservation agreement (CCA) is under development that could potentially enhance existing conservation measures and protections.

    The Huachuca springsnail continues to occupy a very large portion of its estimated historical range (found in 23 of 29 spring sites surveyed since 2004), and a substantial portion of the spring habitat throughout the species' current range is relatively intact (25 of 29 sites assessed as either high- or medium-quality habitat). Current Huachuca springsnail occupancy, and the amount and distribution of high- and medium-quality habitat, supports sufficient resiliency to sustain the Huachuca springsnail into the near future. These levels are commensurate with historical information, and there is no information to suggest that the species will not continue to occur at these levels.

    In considering the foreseeable future as it relates to the status of the Huachuca springsnail, we considered the stressors acting on the species and looked to see if reliable predictions about the status of the species in response to those factors could be drawn. We considered whether we could reliably predict any future effects that might affect the status of the species, recognizing that our ability to make reliable predictions into the future is limited by the variable quantity and quality of available data about impacts to the Huachuca springsnail and the species' response to those impacts.

    For the Huachuca springsnail, the most significant stressor looking into the future is climate change, resulting in both springhead modification and spring discharge decline. When evaluated under plausible future scenarios, however (see Huachuca springsnail SSA report), the best available scientific and commercial information does not show that these stressors to the Huachuca springsnail are likely to result in meaningful population declines in the foreseeable future.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five listing factors, we find that the stressors acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the Huachuca springsnail is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range. This is based on the relatively stable population and distribution of the species and the fact that conservation management is occurring throughout the species' range to minimize impacts to both the habitat and individuals.

    We also evaluated the current range of the Huachuca springsnail to determine if there are any apparent geographic concentrations of potential threats to the species. Generally speaking, the risk factors affecting the Huachuca springsnail occur throughout the range of the species; however, portions of the range that are outside of areas currently afforded protection from future spring modifications (i.e., springs located on private land and in Mexico) may be subject to impacts not found throughout the range of the species, which is mostly located on Federal lands. If we assume that all areas on unprotected land had springhead modification that resulted in the habitat being made entirely unusable to the Huachuca springsnail, that conversion would represent a loss of 21 percent of available habitat. At this scale, we have no information to suggest that the remaining 79 percent of available habitat on Federal lands would not continue to support sufficient Huachuca springsnail resiliency and redundancy. Additionally, there is no genetic information available for the populations on private land and in Mexico to suggest there are unique genetic values for these areas that would need to be maintained to support representation. Based on this analysis, we conclude that the portion of the range of the Huachuca springsnail on Federal lands (79 percent of available habitat) contains sufficient redundancy, resiliency, and representation that ensure that the Huachuca springsnail would not be in danger of extinction in a significant portion of its range if the available habitat on non-Federal lands (21 percent of available habitat) were to become unusable for the species.

    Based on the above evaluations, we find that listing the Huachuca springsnail as an endangered or threatened species or maintaining the species as a candidate is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing it from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Huachuca springsnail, and constitutes the Service's 12-month finding on the May 4, 2004, petition to list the Huachuca springsnail as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Huachuca springsnail's species-specific assessment form, SSA report, and other supporting documents (see ADDRESSES, above).

    Two Kentucky Cave Beetles (Clifton Cave Beetle (Pseudanophthalmus caecus) and Icebox Cave Beetle (Pseudanophthalmus frigidus)) Previous Federal Actions

    The Icebox Cave beetle was added to the Federal list of candidate species in the 1989 CNOR (54 FR 554; January 6, 1989) as a Category 2 candidate species. The Clifton Cave beetle was added to the Federal list of candidate species in the 1994 CNOR (59 FR 58982; November 15, 1994) as a Category 2 candidate species. When the 1996 CNOR (61 FR 7596) discontinued recognition of categories, the Icebox Cave beetle and Clifton Cave beetle were no longer considered candidate species.

    On October 30, 2001, the Service added both the Icebox Cave beetle and the Clifton Cave beetle to the candidate list through the Service's own internal process (66 FR 54808). However, the Service received a petition from the Center for Biological Diversity and others, dated May 11, 2004, to list eight cave beetles, including the Clifton Cave beetle and Icebox Cave beetle. In the May 11, 2005, CNOR (70 FR 24870), the Service determined that listing the Clifton Cave beetle and Icebox Cave beetle was warranted but precluded by higher priority listing decisions. Further, we have included both species addressed in this finding in every CNOR since 2001 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 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; and 80 FR 80584, December 24, 2015).

    Background

    The species are small (about 4 millimeters in length), predatory cave beetles that occupy moist habitats containing organic matter transported from sources outside the cave environment. Members of the Pseudanophthalmus genus vary in abundance from fairly widespread species that are found in many caves to species that are extremely rare and often restricted to only one or two caves. The two beetles addressed by this finding are examples of the latter group as they are restricted to one or two cave habitats in Kentucky. The Clifton Cave Beetle is known from two caves (Clifton Cave and Richardson's Spring Cave) in Woodford County, while the Icebox Cave beetle is known from one cave (Icebox Cave) in Bell County.

    Summary of Status Review

    When the Clifton Cave beetle and Icebox Cave beetle were first identified as candidates for protection under the Act (66 FR 54808; October 30, 2001), the Service considered both species to be vulnerable to habitat destruction or modification caused by a disruption of the natural inflow of energy into the cave environment; we considered both species to be vulnerable to habitat disturbance within the cave environment resulting from vandalism, pollution, or sedimentation; and we noted the inadequacy of existing regulatory mechanisms to ameliorate those threats. In the 2005 CNOR (70 FR 24879; May 11, 2005), we also considered the species' restricted distribution and perceived small population sizes to increase their vulnerability to these effects, and we recognized the potential of these characteristics to limit the species' natural exchange of genetic material, leading to lower genetic diversity and reduced fitness. Both species were assigned a listing priority number (LPN) of 5, which reflects threats of a high magnitude that are not considered imminent.

    Over the last year, new field surveys and monitoring efforts for the Clifton Cave beetle and Icebox Cave beetle have improved our understanding of the species' distribution and threats. A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) for each of the two cave beetle species provides a summary of the literature and information regarding distribution, habitat requirements, life history, and stressors, as well as a detailed analysis of the stressors to the species. Based on these findings, we have re-examined each species' status and re-evaluated the magnitude and imminence of their threats. We acknowledge that the species have narrow ranges and are sometimes difficult to locate within known habitats; however, based on these new field surveys we have determined that each species' overall status is more secure than previously believed.

    With respect to the Clifton Cave beetle, we have no evidence suggesting that the closure of Clifton Cave has harmed the species. Closure of the cave likely benefited the species, as the cave did not appear to be accessible to humans prior to its original disturbance in the early 1960s. Land use surrounding Clifton Cave has not changed dramatically since the 1960s, so we do not expect that habitats within the cave have been disturbed, nor do we expect a future rise in any habitat-related stressors. Due to the consistent land use and low disturbance within the watershed, we also expect that energy inputs via sinkholes, rock fissures, or other karst windows have been maintained, and have provided the energy needed to maintain the cave ecosystem.

    Agricultural land use is even more prevalent in areas surrounding the species' other known cave, Richardson's Spring Cave; however, recent surveys demonstrate that the Clifton Cave beetle has persisted within the cave for over 20 years and continues to be present at levels similar to (or perhaps higher than) those observed in 1994. The species' persistence and high relative abundance over the past two decades indicate that any potential habitat stressors related to agriculture or small population size have not been sufficient to adversely affect the species. The species' persistence also suggests that physical disturbance and vandalism caused by human entry is not a threat (Service 2016, entire). The cave's low ceiling and narrow passage are not favorable for human visitors, and Lewis and Lewis observed no evidence of recent human entry during surveys in 2015.

    With respect to the Icebox Cave beetle, ground disturbance associated with development, agriculture, or resource extraction does not appear to pose a current threat to the species. There is visible evidence of past logging (e.g., abandoned, unpaved roads) near the cave's entrance and some residential development in nearby Pineville, Kentucky, but areas surrounding the cave entrance are forested and remain relatively undisturbed. Land use surrounding the cave has changed little since the beetle's discovery in 1963, and we do not expect this to change. Because of these conditions, we also expect that energy inputs via sinkholes or other karst windows have likely been maintained and will continue to provide energy needed to support the cave ecosystem. Our review of current land use and the species' persistence within Icebox Cave for over 50 years indicates that stressors associated with ground disturbance are not occurring at levels that would cause negative population trends for the Icebox Cave beetle.

    Icebox Cave has a long history of human visitation, and the cave has been heavily disturbed as evidenced by extensive graffiti on cave walls and several altered (broken) formations. Despite this disturbance, recent surveys by Lewis and Lewis demonstrate the Icebox Cave beetle continues to occur in Icebox Cave, the species has persisted within the cave for over 50 years, and it continues to be present at levels similar to (or perhaps greater than) those observed previously (1963 and 1979). The species' persistence over the past five decades suggests that the level of physical disturbance and vandalism observed within the cave has not risen to the level that would threaten the species' continued existence or alter its population levels within the cave. There is also recent evidence that human disturbance within Icebox Cave has all but ceased. Lewis and Lewis observed no evidence of recent human visitation or entry, no fresh garbage, and no recent graffiti.

    We also have no evidence that small population size represents a threat to the Icebox Cave beetle. Only a total of four individuals have been observed in Icebox Cave since 1963, but recent observations by Lewis and Lewis demonstrate the species continues to occur in Icebox Cave and in numbers similar to those reported by previous investigators. The small number of beetles reported from Icebox Cave is not unusual; other Pseudanophthalmus species have been reported in low densities. We believe it is reasonable to assume that some Pseudanophthalmus species have always occurred in low but stable numbers and this is a normal aspect of their life history.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five threat factors, we find that the stressors acting on these species and their habitats, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate the Clifton Cave beetle or Icebox Cave beetle are in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of their respective ranges.

    We evaluated the current ranges of the Clifton Cave beetle and Icebox Cave beetle to determine if there is any apparent geographic concentration of potential threats for these species. Both species have a relatively small range that is limited to one or two cave systems. We examined potential stressors including human visitation, agricultural activities (livestock grazing, row crops), commercial and residential development, resource extraction (logging), disease, predation, sources of water quality impairment, and small population size. We found no concentration of stressors that suggests that either of these cave beetles may be in danger of extinction in a portion of their respective ranges. Therefore, we find that listing the Clifton Cave beetle and Icebox Cave beetle as an endangered or threatened species under the Act throughout all or a significant portion of their respective ranges is not warranted at this time, and consequently we are removing both species from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Clifton Cave beetle and Icebox Cave beetle, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list the Clifton Cave beetle and Icebox Cave beetle as endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Clifton Cave beetle's and Icebox Cave beetle's species-specific assessment forms and other supporting documents (see ADDRESSES, above).

    Artemisia Campestris Var. Wormskioldii (Northern Wormwood) Previous Federal Actions

    In this and previous Federal actions we refer to northern wormwood as Artemisia borealis var. wormskioldii. However, northern wormwood is currently recognized by regional botanical authorities as Artemisia campestris L. var. wormskioldii (Besser) Cronquist.

    Artemisia campestris var. wormskioldii was first recognized as a Category 2 candidate species in the September 27, 1985, review of plant taxa for listing as endangered or threatened species (50 FR 39526). In the February 21, 1990, CNOR, we changed A. campestris var. wormskioldii 's candidate status to Category 1, a species for which substantial information on biological vulnerability and threat(s) was available to support proposals for listing as endangered or threatened species, but issuance of the proposed rule was precluded by other higher priority listing actions (55 FR 6184). In the February 28, 1996, CNOR, we discontinued the use of categories and removed A. campestris var. wormskioldii from candidate status (61 FR 7596).

    In the October 25, 1999, CNOR, we added Artemisia campestris var. wormskioldii back to the candidate list (64 FR 57534). At that time, this species was assigned a listing priority number of 3 (threat facing the subspecies was of high magnitude and imminent) as outlined in our Listing and Recovery Priority Guidelines (48 FR 43098; September 21, 1983). We were petitioned to list this species by the Center for Biological Diversity and others on May 11, 2004. A. campestris var. wormskioldii retained the same status in our CNORs published since 2001 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 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; and 80 FR 80584, December 24, 2015).

    Background

    Artemisia campestris var. wormskioldii is a perennial plant in the family Asteraceae (asters or sunflowers). It is generally low-growing, reaching 15 to 30 centimeters (6 to 12 inches) average height, and has a taproot. Historically, northern wormwood was found on exposed basalt, cobbly-sandy terraces, and sandy habitat in riparian areas along the banks of the Columbia River at elevations above mean sea level ranging from 50 to 150 meters (160 to 500 feet).

    The available information indicates that Artemisia campestris var. wormskioldii is a narrow endemic that may always have existed in only a few, small populations at any one time. Currently, A. campestris var. wormskioldii is known to exist naturally at two sites, Beverly and Miller Island, located respectively in Grant and Klickitat Counties, Washington. Northern wormwood has been planted at five additional locations with the aim of creating new populations within its historical range. Introduction sites in Oregon include Squally Point and Rock Creek Park in Wasco County, and Rufus Island in Sherman County. Introduction sites in Washington include Johnson Island in Benton County and Island 18 in Franklin County. With the exception of Rock Creek Park (owned by the City of Mosier, Oregon), and Squally Point (part of Mayer State Park, Oregon), all of the locations where northern wormwood is found are located on Federal land.

    Summary of Status Review

    A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) provides a summary of the literature and information regarding Artemisia campestris var. wormskioldii's distribution, habitat requirements, life history, and stressors, as well as a detailed analysis of the stressors to the species. This evaluation includes information from all sources, including Federal, State, tribal, academic, and private entities and the public. We consider this supporting document the best available scientific and commercial information.

    We previously identified potential stressors (natural or human-induced negative pressures affecting individuals or subpopulations of a species) on Artemisia campestris var. wormskioldi, to include: (1) Altered hydrology; (2) erosion; (3) trampling; (4) nonnative, invasive plants; (5) herbivory; (6) climate change; (7) fire; and (8) genetic and other small-population issues. Dam construction, associated changes in flow and sediment regimes, deep pool formation behind the dams, and related shoreline development (such as roads, railroads, and riprap) likely caused the loss of historical habitat of northern wormwood, and as a result of these changes, little suitable habitat may remain within the plant's documented historical range. The habitat within the known historical range, as well as some other areas of suitable habitat, have been surveyed by knowledgeable biologists for additional populations of A. campestris var. wormskioldii since 2002, and the likelihood is low that undiscovered populations exist in these areas. The current hydrology in the Columbia River may have some effect on individual A. campestris var. wormskioldii plants and on their habitat; high flows in some years have caused mortality of recently transplanted individuals) and also have been correlated with large flushes of seedlings. However, the best available scientific and commercial information does not indicate that current flow regimes or past development have current or ongoing population-level effects on the abundance and distribution of A. campestris var. wormskioldii.

    Natural erosion by wind and water of the sandy substrate has been observed at Miller Island and Squally Point and has caused mortality of individual Artemisia campestris var. wormskioldii plants and decreased seedling survival. Deposition of sand has buried plants on Miller Island, and an inverse relationship evidently exists between sand deposition and the number of A. campestris var. wormskioldii plants on the island in a given year. Since 2010, the number of mature plants has increased annually on Miller Island, and percent sand cover in A. campestris var. wormskioldii monitoring plots varied and decreased overall over the same period. This phenomenon has not been observed at the Beverly site or the other introduced sites.

    In the past, both natural populations of Artemisia campestris var. wormskioldii suffered from trampling by people (Beverly and Miller Island) and trampling and herbivory by grazing cattle (Miller Island only). People using these sites for recreation inadvertently trampled plants, and on Miller Island, cattle reportedly uprooted individual plants growing in loose, sandy substrate and may also have acted as a vector for nonnative plant species. However, grazing was eliminated from Miller Island in 1988, and cattle are not present there today or at any other site occupied by A. campestris var. wormskioldii. Foot traffic and boat launching were curtailed at Beverly with the construction of a fence to protect the A. campestris var. wormskioldii population. Trampling by people and cattle and herbivory by cattle, therefore, are unlikely to be population-level stressors to A. campestris var. wormskioldii today or in the foreseeable future. The extent of herbivory by native animals is largely unknown, but based on available information, it is likely to be minor and have no population-level impacts on A. campestris var. wormskioldii.

    Nonnative, invasive plants occur at most of the sites where Artemisia campestris var. wormskioldii occurs. Dalmatian toadflax (Linaria dalmatica) and diffuse knapweed (Centaurea diffusa) are present in the A. campestris var. wormskioldii population at Beverly, where monitoring and regular treatment keep them under control. At Miller Island, diffuse knapweed and cheatgrass (Bromus tectorum) are present but in low density. Among the sites where A. campestris var. wormskioldii has been introduced, indigo bush (Amorpha fruticosa) occurs on Rufus Island, and indigo bush, diffuse knapweed, and rush skeletonweed (Chondrilla juncea) plants occur at Squally Point. Although initial treatment of nonnative plants occurred at both of these sites, follow up treatments have not yet occurred. Without regular intervention, these nonnative plants can spread into new areas, including into patches of A. campestris var. wormskioldii, and they are likely to compete with A. campestris var. wormskioldii for resources. Although the impacts of nonnative, invasive plant species on ecosystems generally are well known, there is no prior documentation or current, direct evidence of a negative response in A. campestris var. wormskioldii to the presence of nonnative, invasive plant species. Thus, we can only speculate about potential effects on A. campestris var. wormskioldii and about the imminence and severity of those effects if they occur. The species of nonnative, invasive plants and efforts to control them (current and anticipated) are not uniformly distributed across the sites where A. campestris var. wormskioldii occurs. Therefore, if invasive plants have negative impacts to A. campestris var. wormskioldii, those potential impacts, and whether and when they might be expressed, are likely to be different at different sites. We do anticipate, however, that ongoing treatment of nonnative, invasive plants will occur as needed at A. campestris var. wormskioldii sites, especially given the current investment in establishing new populations of A. campestris var. wormskioldii and the long-term, ongoing interest and involvement of our State and other partners in the conservation of this rare plant.

    With only two known naturally occurring populations and two of five introduction sites with documented natural recruitment, A. campestris var. wormskioldii has a limited capacity to withstand stochastic events such as harsh winter conditions, prolonged droughts, and fire. For example, a steep decline in the number of adult A. campestris var. wormskioldii plants at the Beverly site in 2009 may have been caused in part by the previous winter having been unusually cold and long. However, whether the harsher than average winter was related to climate change is not known.

    Climate model projections for the Pacific Northwest Region indicate a continued increase in temperature, with changes in annual mean maximum temperature projected to be largest in the summer months). Precipitation in this region is projected to remain close to current levels, but mean runoff is expected to peak earlier in the year. The projected effects of climate change in the Pacific Northwest, including effects on water management in the Columbia River basin, may exacerbate the effects of drought, invasive species, and fire on Artemisia campestris var. wormskioldii and its habitat. Although A. campestris var. wormskioldii populations may experience reduced reproduction and increased mortality as a result of climate fluctuations today and the effects of climate change in the future, the available information does not point to current impacts of these stressors on the species or allow us to reasonably predict the imminence or severity of the cumulative effects of climate change on A. campestris var. wormskioldii or its habitat.

    To date, fire has not been a limiting factor for Artemisia campestris var. wormskioldii at Beverly or Miller Island. Because bio-fuel accumulation (from native and nonnative plants) is generally low in the sand, gravel, and cobble bars where this species occurs, fire has not influenced the status of northern wormwood individuals or populations. Although A. campestris var. wormskioldii may be top-killed by fire, the likelihood of an entire population succumbing to or being able to recover from a fire is unknown). Related subspecies have been shown to persist on repeatedly burned sites.

    The two naturally occurring populations of Artemisia campestris var. wormskioldii are separated by a large distance, more than 200 miles (320 kilometers), likely negating the possibility of gene exchange. Loss of genetic variability can affect disease resistance, adaptive capacity, and reproductively compatible gene combinations (genotypes) in the affected species. Small populations are more susceptible to inbreeding, which can reduce the fitness of offspring. However, the historical rate of genetic exchange among A. campestris var. wormskioldii populations is unknown, and the best available scientific and commercial information does not indicate that A. campestris var. wormskioldii has lost, or is losing, genetic variability or experiencing inbreeding depression as a result. In addition, plantings to augment natural populations and establish new populations were begun in 2006 and are ongoing.

    To date, Artemisia campestris var. wormskioldii has been introduced to five sites within the historical range to expand the number of populations, increase distribution and abundance, decrease isolation, and buffer potential risks faced by small populations. Seeds collected from the two natural populations were used to propagate plants for these introductions, and plantings have been done experimentally to determine microsite conditions where plants are most likely to survive and become established. Modest natural recruitment has been documented at the two oldest sites, initially planted in 2008 and 2011. We anticipate that the genetic diversity in the two natural populations of A. campestris var. wormskioldii will continue to be represented at existing and future introduction sites.

    Regulatory mechanisms, such as designation by Bureau of Land Management and U.S. Forest Service as a sensitive species through the Interagency Special Status/Sensitive Species Program, the species conservation plan under the Federal Energy Regulatory Commission licensing agreement for the Priest Rapids Hydroelectric Project, and current State-level protections in Oregon and Washington, have resulted in some increased protection of the natural populations of Artemisia campestris var. wormskioldii, some control of invasive plant species in some sites where A. campestris var. wormskioldii occurs, and amelioration of stressors such as trampling by livestock and by people (e.g., at the Beverly and Miller Island sites). Conservation measures undertaken for the species have shown variable results at the five introduction sites, including two nascent populations that improve A. campestris var. wormskioldii's abundance and distribution.

    Our review of the best available scientific and commercial information does not indicate that the potential stressors currently have, or are anticipated to have, population-level effects on Artemisia campestris var. wormskioldii. Some stressors cause or could cause individual mortality, including erosion, inundation, and possibly herbivory by native animals, but the available information does not indicate that any of, or the cumulative impact of all, these stressors has a population- or species-level impact now or that they are likely to have such impacts in the foreseeable future. Although numbers of mature, flowering individuals at some populations have decreased in recent years, numbers have increased at others. While questions remain regarding limiting factors, demography, age structure, and population trends, the plant's ability to persist appears greater than previously understood.

    Future impacts of climate change may exacerbate stressors to A. campestris var. wormskioldii and its habitat, but we cannot reasonably project the timing, imminence, or severity of the effects of climate change into the foreseeable future. Further, the uncertainty about how A. campestris var. wormskioldii will respond to climate change, combined with the uncertainty about how potential changes in plant species composition would affect site suitability, make projecting possible synergistic effects of climate change highly speculative at this time.

    A species may occur in very low numbers without being at risk of extinction. Such species, merely by virtue of their rarity, do not merit listing under the Act. Although Artemisia campestris var. wormskioldii has persisted at low numbers and with a narrowly limited distribution, rarity in itself does not automatically imply that the species is at risk of extinction. Moreover, a species may be exposed to stress factors and lose individuals, without expressing a negative response at the population or species level such that the species meets the definition of endangered or threatened under the Act. We must evaluate the exposure of the species to stressors to determine whether the species responds to the stressors in a way that causes impacts now or is likely to cause impacts in the future. We also must determine whether impacts are or will be of an intensity or magnitude to place the species at risk. In our analysis of potential stressors to A. campestris var. wormskioldii, we have not found evidence of such responses or negative impacts.

    Finding

    Based on our evaluation of the best available scientific and commercial information, we find that no stressors are of sufficient imminence, intensity, or magnitude to indicate that A. campestris var. wormskioldii is in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened) throughout all of its range. This is because we have determined that threats we identified in past CNORs are not affecting the species as we previously understood. Further, the distribution of Artemisia campestris var. wormskioldii is relatively stable across its range (and the number of populations, including sites where the plant was recently introduced, has increased since 2006) and stressors are similar throughout the species' range. Thus, we did not find any concentration of stressors that suggests that this plant may be in danger of extinction in any portion of its range. Therefore, we find that listing A. campestris var. wormskioldii as an endangered or a threatened species is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing this species from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for Artemisia campestris var. wormskioldii, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list A. campestris var. wormskioldii as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the A. campestris var. wormskioldii 's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Virgin Islands Coquí (Eleutherodactylus schwartzi) Previous Federal Actions

    On October 6, 2011, the Service received a petition dated September 28, 2011, from WildEarth Guardians, requesting that we list the Virgin Islands coquí (VI coquí), a frog species, under the Act. On January 22, 2014, we published a 90-day finding (79 FR 3559) in which we found that the petition presented substantial scientific and commercial information indicating that listing may be warranted for the VI coquí.

    Background

    The VI coquí is a small frog species, of the family Eleutherodactylidae. The VI coquí was first described as Eleutherodactylus schwartzi based on specimens obtained on the islands of Tortola and Virgin Gorda. While similar to the Puerto Rican coquí (Eleutherodactylus coquí), a species native to neighboring Puerto Rico, E. schwartzi is distinguished by its smaller size and coloration.

    The VI coquí's breeding season begins in May and lasts until August. Although members of the Eleutherodactylus genus do not require an aquatic environment for reproduction, they do require cool, moist habitat for rehydration and to prevent the desiccation of egg clutches. This species is a “direct development” species, meaning that it skips the tadpole stage and fully formed froglets hatch from the eggs.

    The VI coquí is a tree-dwelling, terrestrial species, occurring in temperate woodlands and forests, in elevations up to 227 meters (744.7 feet). The species is typically not found outside of forested areas. However, there have been reports of the VI coquí in residential gardens, pastures, and gullies in and around Great Harbour on the island of Jost Van Dyke and in residential gardens on Frenchman's Cay. The VI coquí prefers to hide under rocks, leaf litter, and bromeliad leaves during the day to stay out of the hot sun. The species is strongly associated with the presence of terrestrial bromeliads, such as the false pineapple (Bromelia pinguin) and species from the genus Tillandsia. The males use bromeliads for perching when calling, and females lay their eggs on the leaves of the plants.

    The VI coquí has a broad diet that includes small vertebrates and invertebrates. Although there is a lack of information on the diet of this species, members of the genus Eleutherodactylus are known to be “nocturnal, sit-and-wait predators that prey on members of the order Hymenoptera (which includes ants, wasps, bees), Collembolan (springtails), Pseudoscorpionida (false scorpions) and Dipteran (true flies)”.

    The VI coquí has a relatively limited range, with its historical population occurring in the U.S. Virgin Islands (USVI) and the British Virgin Islands (BVI) in the Caribbean. Specifically, the species was found on the island of Saint John in the USVI and the islands of Tortola, Virgin Gorda, Jost Van Dyke, Great Dog, Beef Island, Frenchman's Cay, and Little Thatch in the BVI. The species has since experienced alteration of its range within the past 40 years. Surveys conducted in the 1970s found no presence of the species on St. John in the USVI, suggesting the species is extirpated there. Although some ambiguity exists in the survey due to similarity in calls between the VI coquí and the related Puerto Rican coquí, subsequent acoustic surveys confirmed the presence of the VI coquí on the other islands: Tortola, Virgin Gorda, Jost Van Dyke, Great Dog, Beef Island, and Frenchman's Cay.

    Summary of Status Review

    A supporting document entitled “12-Month Finding on a Petition to List the Virgin Islands Coquí as an Endangered or Threatened Species” provides a summary of the current literature and information regarding the VI coquí's distribution, habitat requirements, life history, and stressors (see ADDRESSES, above). We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized species and habitat experts and representatives of the range countries.

    We evaluated whether each of the potential stressors impact, presently or in the future, individuals or portions of suitable habitat. The potential stressors that we assessed are: (1) Habitat loss and fragmentation from urban development; (2) trade and collection; (3) predation from the small Indian mongoose and Cuban tree frog (CTF); (4) chytridiomycosis; (5) inadequacy of existing regulatory mechanism; (6) competition from CTF and Puerto Rican coquí; (7) climate change; and (8) small population size.

    The Virgin Islands coquí is found on six islands in the BVI. Although we do not have survey data on the population, the species continued to persist on these islands. Continued persistence of the species on the island is due to past and present management efforts by the BVI territory government. Rate of deforestation has declined from historical high in the 20th century due to the transition in the BVI's economy from cash crop to tourism as well as the establishment of protected areas. These protected areas helped maintain and protect remaining forest habitats. Additionally, these areas have allowed deforested habitat to recover, promoting new secondary deciduous and dry forests.

    To support the BVI tourism industry, development projects are being proposed or are currently in progress across the BVI with Tortola containing most of the major projects. However, most of the development projects occur in areas that already contain little to no coquí habitat; therefore we have no reason to believe that these projects would adversely affect the VI coquí. We also found no indications of trade or collection occurring with this species.

    The impact of invasive species such as the small Indian mongoose and the CTF is mitigated both by ongoing management effort as well as differences in the ecology of these species. A mongoose eradication program is currently in place on Jost Van Dyke. The small Indian mongoose's preference for drier climate gives the coquí some protection from predation, as it prefers wetter habitat. More importantly, mongoose cannot climb trees, which offers protection for arboreal species like the coquí. These factors together limit the impact the mongoose has on the VI coquí.

    The impact of CTF on the VI coquí is ameliorated by differences in reproductive method and ongoing management program. CTF require freshwater habitat to lay their eggs. Meanwhile, as a direct-developing species, VI coquí can give birth to live young in bromeliads. Additionally, predation of VI coquí by CTF is limited due to CTF's preference for smaller invertebrates, with frogs making up only 3 percent of CTF's diet. CTFs may compete with VI coquís for prey, as the species' diet is similar to the coquí's. However, we have found no information indicating competition for invertebrates is affecting the coquí.

    The impact of chytrid fungus on the VI coquí is limited by local conditions in the BVI. The current temperature range in the BVI is outside the optimal range of the fungus. Additionally, while cases of infection can still occur in sub-optimal area, infection may not be fatal due to unfavorable growing conditions of the fungus.

    We reviewed all international and local laws, regulations, and other regulator mechanisms that may impact the VI coquí and its habitat. Despite shortages in staff and personnel, a recent survey of protected areas found many areas to be stable or experiencing light development. The stability in these protected areas seems to indicate that although these organizations are facing shortages in funds and staff, they are still able to protect fragile habitat in the BVI.

    Surveys conducted on Jost Van Dyke found the Puerto Rican coquí may also compete with the VI coquí. Although the potential exists that the Puerto Rican coquí could compete with the VI coquí, sightings of the species have only recently occurred on Jost Van Dyke in 2015. The Puerto Rican coquí has not been documented on the other six islands where the VI coquí is known to occur. Thus, it is too soon to tell what impacts, if any, the Puerto Rican coquí might have on the VI coquí.

    The effects of climate change on the VI coquí are unclear. While the impact from an increase in stochastic event is limited by the steep hills and mountains on the islands, the impact of climate change on plant biomes and the species' reproductive season remains unknown. As we do not have information to reasonably predict whether climate change may affect the species' breeding season or result in changes in plant composition, we cannot draw conclusions on how the VI coquí may respond to potential changes.

    While we do not have information on population trends for the VI coquí, we nonetheless considered whether small population size and limited distribution in combination with other stressors might impact the species. The species has been described as rare. However, species that naturally occur in low densities are not necessarily in danger of extinction, and therefore do not necessarily warrant listing, merely by virtue of their rarity. In the absence of information identifying stressors to the species and linking those stressors to the rarity of the species or a declining status, we do not consider rarity alone to be a threat. Further, a species that has always had small population sizes or has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future.

    Finally, we found that the VI coquí has sufficient resiliency, redundancy and representation to recover from periodic disturbance such as hurricanes, droughts, and other stochastic events. The VI coquí population is distributed across six of nine islands in the BVI, which contributes to the redundancy of the species. While we lack detailed information on the genetic diversity of the species, male VI coquís on different islands are characterized by variation in sizes. Additionally, the Great Dog population of VI coquí has been described as somewhat distinct. These factors suggest that there exist genetic diversity (representation) among the populations of coquí across the six islands.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the VI coquí is in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened), throughout all or a significant portion of its range.

    We found no portions of the species' range where potential threats are significantly concentrated or substantially greater than in other portions of its range. Therefore, we find that factors affecting the species are essentially uniform throughout its range, indicating no portion of the range of the VI coquí is likely to be in danger of extinction or likely to become so within the foreseeable future. Therefore, we found that no portion warranted further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

    Therefore, we find that listing the VI coquí as an endangered or threatened species under the Act is not warranted at this time. This document constitutes the 12-month finding on the September 28, 2011, petition to list the VI coquí as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the supporting document entitled “12-Month Finding on a Petition to List the Virgin Islands Coquí as an Endangered or Threatened Species” (see ADDRESSES, above).

    Washington Ground Squirrel (Urocitellus washingtoni) Previous Federal Actions

    The Washington ground squirrel was recognized as a Category 2 candidate species (as Spermophilus washingtoni) in 1994 (59 FR 58982; November 15, 1994). When the February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories, the Washington ground squirrel was no longer considered a candidate species. We again identified the Washington ground squirrel as a candidate for listing in 1999 (64 FR 57534; October 25, 1999) and assigned a listing priority number of 5, which reflects threats of a high magnitude that are not considered imminent.

    On March 2, 2000, we received a petition from the Northwest Environmental Defense Center, Defenders of Wildlife, and the Oregon Natural Desert Association to emergency list the Oregon population of this species as a distinct population segment, or list the species over its entire range as an endangered or threatened species under the Act. Included in the petition was information regarding the species' taxonomy and ecology, historical and current distribution, present status, and actual and potential causes of decline. In 2001, based on new information, including information contained in the 2000 petition, we determined that the Washington ground squirrel faced imminent threats of a high magnitude and reassigned it an LPN of 2 (66 FR 54808; October 30, 2001). The Washington ground squirrel remained on the candidate list with an LPN of 2 from 2002 to 2004 (67 FR 40657, June 13, 2002; and 69 FR 24876, May 4, 2004). In the 2005 CNOR (70 FR 24870, May 11, 2005), we changed the LPN to 5, and since that date, the species has remained on the candidate list with an LPN of 5 (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; and 80 FR 80584, December 24, 2015). In our November 22, 2013, CNOR (78 FR 70104), we recognized Urocitellus washingtoni as the scientific name for the Washington ground squirrel.

    Background

    The Washington ground squirrel was formerly part of the genus Spermophilus (as Spermophilus washingtoni), but is now determined to be one of 12 species in the genus Urocitellus (Holarctic ground squirrels. The Washington ground squirrel is diurnal (active during the day) and semi-fossorial (e.g., partly adapted to digging and life underground). Their active, above-ground period spans anywhere between the months of January and July, with the specific timing depending on elevation and microhabitat conditions as well as availability of food sources. Washington ground squirrels typically live fewer than 5 years and produce one litter annually, with an average of five to eight pups. They eat a wide variety of foods including succulent forbs and grass stems, buds, leaves, flowers, roots, bulbs, and seeds.

    The Washington ground squirrel occurs in shrub-steppe and grassland habitat in eastern Washington and north-central Oregon. In Washington, the species occurs in Adams, Douglas, Franklin, Grant, Lincoln, and Walla Walla Counties. In Oregon, it is found in Gilliam, Morrow, and Umatilla Counties, but is centered largely on the Naval Weapon Systems Training Facility Boardman (NWSTF Boardman) and the adjacent Boardman Conservation Area (BCA). Washington ground squirrel habitat is characterized by deep, loamy soils deposited by the Missoula Floods and shrub-steppe vegetation. Historically, the species was primarily associated with sagebrush (Artemisia sp.) and bunchgrass habitats, but cheatgrass (Bromus tectorum) and rabbitbrush (Chrysothamnus sp.) have replaced much of the original flora on nonagricultural land. The species can be found in all these habitat types where there is sufficient forage and suitable soils, regardless of vegetation type.

    Summary of Status Review

    Historically, the Washington ground squirrel was a little-studied species. A 1990 survey of 179 of the 189 potential historical Washington ground squirrel locations found 80 confirmed and 7 probable colonies. In a repeat survey in 1998 of the confirmed and probable sites, clear evidence of squirrels was found at only 46 of the locations. The Washington ground squirrel received more attention and funding after it became a Federal candidate species in 1999, and the increased survey effort led to a notable expansion of the number of documented locations and distribution of the species from what was known in 1999.

    As part of our assessment of the best available scientific and commercial information, we evaluated the number of Washington ground squirrel records included in the Oregon and Washington Natural Heritage Program databases. In Oregon, 2012 data showed 705 known records (any of which could constitute a single individual or a small, medium, or large colony). As of April 2013, Oregon records of Washington ground squirrels had increased to 1,318, an 87 percent increase from the 2012 data. In Washington, 2012 data showed 567 mapped polygons (estimated areas containing squirrels) and 65 known squirrel records outside of the polygons. As of April 2013, Washington polygons had increased to 602 and records had increased to 579.

    These updated Washington ground squirrel records, along with new information on dispersal distances and habitat quality, led us to evaluate potential connectivity between squirrel detections. We analyzed new data regarding linkages between areas of high-quality habitat, and dispersal distances from known sites to potential habitat, and found that there is some connectivity between these areas of high-quality habitat, and connectivity between known sites and potential habitat. The majority of known Washington ground squirrel sites are on public lands, within the BCA, or are newer sites documented from increased survey efforts on private lands. The analysis indicated that many squirrel sites are within dispersal distance of one another, and potential squirrel habitat exists within the interstitial space between clusters providing connectivity between the sites. This indicates that Washington ground squirrel populations are not as isolated from one another as we had previously thought, and potential opportunities for genetic exchange exist in most of the range, as many sites are likely functioning within a metapopulation framework.

    Furthermore, based on the Washington Wildlife Habitat Connectivity Working Group habitat quality layer for Washington ground squirrel and recent squirrel surveys in Oregon and Washington, we estimated that there are at least 0.74 million hectares (ha) (1.84 million acres (ac)) of potential occupied habitat within the current range. Although our finding does not rely on the presumed presence of squirrels in potential habitat, this estimate of potential habitat, along with the fact that new sites are consistently documented when suitable habitat is surveyed, supports the assumption that additional Washington ground squirrels are likely to be found with further survey effort in large areas of at least moderate-quality potential habitat. This adds confidence to our independent conclusion that, based on the best scientific data currently available to us, the Washington ground squirrel is more widespread and numerous than we had previously understood.

    Candidate status was based on habitat loss, fragmentation, or modification due to fire and invasive plants, agriculture, intensive grazing, proposed and ongoing military activities, energy development and transmission, and urban development; predation; recreational shooting; disease; potential effects of pesticides; and potential effects of drought on forage quality and quantity. Habitat loss was considered the main reason the squirrel's range is smaller than it was historically, particularly through agricultural conversion of shrub-steppe habitat, and more recently the invasion of nonnative annual grasses and forbs, especially cheatgrass.

    There are current management actions, policies, and protections in place that have substantially reduced or eliminated stressors to the Washington ground squirrel and will continue to do so in the future. The 25-year Threemile Canyon Farms Multi-Species Candidate Conservation Agreement with Assurances (MSCCAA), signed in 2004, included the implementation of habitat management, operational modifications, and conservation measures for four unlisted species, including the Washington ground squirrel, on approximately 37,636 ha (93,000 ac) of habitat. This dramatically reduced agricultural development in Washington ground squirrel habitat and was part of an overall decline in the conversion of shrub-steppe to agricultural use in recent years; harvested cropland accounted for only 1 percent of all land available to the squirrel within its range during the 1978 to 2007 time period. There are no known large-scale agricultural projects planned that are likely to impact Washington ground squirrels by conversion to agricultural uses, and we are unaware of any planned U.S. Department of Agriculture programs that could significantly change the current rate of conversion in counties containing Washington ground squirrels in the future. Furthermore, as a State-endangered species in Oregon, activities detrimental to squirrels are prohibited on State-owned or leased land and easements in Oregon. The Oregon Energy Facility Siting Council and Gilliam, Morrow, and Umatilla Counties have adopted the State's guidelines on 100 percent of wind projects sited in Oregon, and these guidelines include conservation measures for Washington ground squirrels. Urban development, while it continues, is mostly concentrated in urban growth areas, which represent a very small portion of the range. Finally, the Service and Foster Creek Conservation District (FCCD) signed the Douglas County Multiple Species General Conservation Plan (MSGCP) on September 17, 2015. The MSGCP is a programmatic habitat conservation plan that private landowners in Douglas County, Washington, can voluntarily opt into; the plan includes best management practices (BMPs) specific to supporting the conservation of Washington ground squirrels. Though this habitat conservation plan is anticipated to provide conservation benefits to Washington ground squirrel, it is a voluntary program and we do not know how many landowners will enroll, so we cannot rely on the certainty of these benefits in our finding determination.

    We also evaluated a future conservation effort in connection with military readiness activities at NWSTF Boardman following the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE); 68 FR 15100, March 28, 2003). The final environmental impact statement (FEIS) completed in December 2015, and record of decision (ROD) signed on March 31, 2016, confirm the Navy's commitment to implement conservation efforts that eliminate or reduce threats to Washington ground squirrels from military readiness activities on the 19,020 ha (47,000 ac) of NWSTF Boardman through a combination of BMPs, mitigation, monitoring, and adaptive management. In order to determine whether we should consider these conservation measures in this decision, we completed an analysis of the certainty of implementation and effectiveness of these future actions pursuant to PECE (68 FR 15100; March 28, 2003). Based on the history of the Navy's collaboration with us; the combined application of BMPs, mitigation, monitoring, and adaptive management; and their formal commitment to fully implement the actions they agreed to, we have a high level of certainty that the conservation efforts will be implemented and effective, and therefore considered them in this determination for the Washington ground squirrel. Military readiness activities at NWSTF Boardman will negatively impact only a small percentage (less than 1 percent) of the Washington ground squirrel habitat on the facility. Additionally, the majority of impacts associated with projectiles striking the ground, potential training-caused wildfires, and spread of invasive plants would occur in a small area (less than 324 ha (800 ac)). The Navy has committed to implementing all of the BMPs, mitigation measures, and the adaptive management strategy outlined in their FEIS in order to ameliorate any impacts to the species due to current and future military readiness activities. Therefore, we consider the former threat posed to Washington ground squirrels from military readiness activities to have been ameliorated.

    Fire and conversion of sagebrush habitat to invasive plant species are, and will continue to be, rangewide issues. However, fire and invasive species have not prevented squirrels from persisting and remaining broadly distributed in these habitats, even in areas that burn frequently (e.g., the NWSTF), and we anticipate squirrels will continue to persist in these areas. These stressors are being addressed at varying levels by landowners, local governments, organizations, and agencies. Grazing can be a compatible land use with this species, and we have no information indicating that intensive grazing is currently widespread, or anticipated to be in the future, in areas occupied by the species. Other factors such as shooting, disease, and effects from pesticide use occur on a small enough scale that they are not considered significant stressors to the species now, nor are they likely to be in the future.

    Some isolated populations of the Washington ground squirrel may be vulnerable to genetic effects associated with small populations; however squirrel occurrence sites are likely not as isolated as we previously thought. The rate of habitat conversion that contributes to habitat fragmentation has dropped significantly, and there are no strong and predictive trends toward development or agricultural conversion of occupied and potential habitat. Furthermore, we have documentation that squirrels are more widely distributed than previously thought; it is very likely that additional undocumented sites exist and connectivity provides potential opportunities for genetic exchange in most of the range. We therefore conclude that small population size is not currently a stressor to the Washington ground squirrel as a whole, nor is it likely to become one in the future.

    Washington ground squirrel habitat is likely to be influenced by the climate change effects of increased temperatures, changes in precipitation, increased frequency and intensity of fire, and an increase in invasive vegetation (due to fire, drought, and increased carbon dioxide concentrations). We have some information about climate-change projections for temperature and precipitation in the range of the squirrel, but we have no information to suggest that temperature will increase or precipitation decrease to levels that would affect the viability of Washington ground squirrels rangewide. Increased winter and spring precipitation could have a positive effect on squirrels by providing adequate forage during the breeding season. Although hotter and drier summers may reduce the quality and abundance of native forage available to Washington ground squirrels, the species is distributed across a range of elevations, has a diverse diet, and is able to persist in disturbed grassland. Thus, the best available scientific and commercial information at this time does not lead us to conclude that the current or future effects of climate change will impact the viability of Washington ground squirrels rangewide.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the five factors, and when considering all of the factors in combination with each other and the existing conservation measures that benefit the species and its habitat, we conclude that the impacts on the species and its habitat are not of such imminence, intensity, or magnitude to indicate that the Washington ground squirrel is in danger of extinction (an endangered species), or likely to become so within the foreseeable future (a threatened species), throughout all of its range. Although the types of stressors vary across the range, we found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. Therefore, we find that listing the Washington ground squirrel as an endangered or threatened species or maintaining the species as a candidate is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing it from candidate status.

    As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Washington ground squirrel and constitutes the Service's 12-month finding on the March 2, 2000, petition to list the Washington ground squirrel as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Washington ground squirrel's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    New Information

    We request that you submit any new information concerning the taxonomy, biology, ecology, status of, or stressors to the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii, Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT, whenever it becomes available. New information will help us monitor these species and encourage their conservation. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts for these species. If an emergency situation develops for these species, we will act to provide immediate protection.

    References Cited

    Lists of the references cited in the petition findings are available on the Internet at http://www.regulations.gov and upon request from the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT.

    Authors

    The primary authors of this document are the staff members of the Unified Listing Team, Ecological Services Program.

    Authority

    The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 7, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-22453 Filed 9-20-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2016-0037; 4500030113] RIN 1018-BB55 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Pearl Darter AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the Pearl darter (Percina aurora), a fish from Mississippi, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. The effect of this proposed regulation will be to add this species to the List of Endangered and Threatened Wildlife.

    DATES:

    We will accept comments received or postmarked on or before November 21, 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 November 7, 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-R4-ES-2016-0037, which is the docket number for this rulemaking. Then, 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-R4-ES-2016-0037; U.S. Fish and Wildlife Service Headquarters, 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 Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office, 6578 Dogwood Parkway, Jackson, Mississippi 39213, by telephone 601-321-1122 or by facsimile 601-965-4340. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    What this document does. This document proposes the listing of the Pearl darter (Percina aurora) as a threatened species. The Pearl darter is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which until now development of a listing regulation has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding status of and threats to the Pearl darter.

    This document does not propose critical habitat for the Pearl darter. We have determined that critical habitat is prudent, but not determinable at this time.

    The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (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. We have determined that water quality decline from point and nonpoint source pollution continues to impact portions of this species' habitat. In addition, geomorphology changes attributed to past sand and gravel mining operations within the drainage are considered an ongoing threat. This species has been extirpated from the Pearl River watershed and is confined today to the Pascagoula River Basin where this species' small population size and apparent low genetic diversity increases its vulnerability to extirpation from catastrophic events.

    We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal.

    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 the public, 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) The Pearl darter's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

    (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 species, its habitat, or both.

    (2) Factors that may affect the continued existence of the species, 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 species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    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 directs that determinations as to whether any species is a threatened or endangered 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 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, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

    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 within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown 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 have sought the expert opinions of three appropriate and independent specialists regarding 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 the Pearl darter's biology, habitat, and physical or biological factors that will inform our determination.

    Previous Federal Actions

    We identified the Pearl darter (Pearl channel darter, Percina sp.) as a Category 2 Candidate in the November 21, 1991, Animal Candidate Review for Listing as Endangered or Threatened Species; Notice of Review (56 FR 58804). Category 2 Candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in the subsequent November 15, 1994, annual Candidate Notice of Review (CNOR) (59 FR 58982). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Pearl darter was no longer a candidate species.

    Subsequently, in 1999, the Pearl darter was once again added to the candidate list (64 FR 57534, October 25, 1999). Candidates are now defined as those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. The Pearl darter was included in all of our subsequent annual CNORs: 66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 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; 77 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015.

    The Pearl darter has a listing priority number of 8, which reflects a species with threats that are both imminent and moderate to low in magnitude.

    On May 11, 2004, we were sent a petition to list the Pearl darter by the Center for Biological Diversity. Because no new information was provided in the petition, and we had already determined the species warranted listing, no further action was taken on the petition.

    On May 10, 2011, the Service announced a work plan to restore biological priorities and certainty to the Service's listing process. As part of an agreement with one of the agency's most frequent plaintiffs, the Service filed a work plan with the U.S. District Court for the District of Columbia. The work plan enables the agency to, over a period of 6 years, systematically review and address the needs of more than 250 species listed within the 2010 CNOR, including the Pearl darter, to determine if these species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. This work plan enables the Service to again prioritize its workload based on the needs of candidate species, while also providing State wildlife agencies, stakeholders, and other partners clarity and certainty about when listing determinations will be made. On July 12, 2011, the Service reached an agreement with another frequent plaintiff group and further strengthened the work plan, which allows us to focus our resources on the species most in need of protection under the Act. These agreements were approved by the court on September 9, 2011. The timing of this proposed listing is, in part, an outcome of the work plan.

    Background Taxonomy and Species Description

    The Pearl darter (Percina aurora) is a small fish with a blunt snout, horizontal mouth, large eyes located high on the head, and a medial black spot at the base of the caudal (tail) fin (Ross 2001, p. 498). Described in 1994 (Suttkus et al. 1994, pp. 13-17) from the Strong River in Simpson County, MS (Ross 2001, p. 500), the Pearl darter is one of three members of the subgenus Cottogaster. The Pearl darter is closely allied to the channel darter (P. copelandi) (Ross et al. 1989, p. 25). It is distinguished from the channel darter by its larger body size, lack of tubercles (small, raised, skin structures) and heavy pigmentation of breeding males, high number of marginal spines on the belly scales of breeding males, and fully scaled cheeks. Breeding males have two dark bands across the spinous dorsal (back) fin, a broad, diffuse, dusky marginal band, and a pronounced dark band across the fin near its base. Breeding females lack pigmentation on their ventral body surface. The Pearl darter reaches a maximum standard length (SL) of 57 millimeters (mm) (2.2 inches (in.)) in females and 64 mm (2.5 in.) in males (Suttkus et al. 1994, p. 16).

    Distribution Historical Range

    The Pearl darter is historically known from localized sites within the Pearl and Pascagoula River drainages of Mississippi and Louisiana, based on collection records from 16 counties/parishes of Mississippi and Louisiana. The quantified range of the Pearl darter, expressed in river miles, has not been well-defined by researchers (Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 5-8; Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4, Suttkus et al. 1994, pp. 15-18). However, a recent reanalysis of collection records compiled from the Mississippi Museum of Natural Science (MMNS) (2016, unpublished data) estimates the species' historical range to be approximately 708 kilometers (km) (440 miles (mi)) in the Pearl River and 539 km (335 mi) in the Pascagoula River system, for a total historical range of 1,247 km (775 mi).

    Pearl River Watershed—Examination of site records of museum fish collections from the Pearl River drainage (compiled from Suttkus et al. 1994, pp. 15-18) suggest that the darter once inhabited the large tributaries and main channel habitats from St. Tammany Parish, LA, to Simpson County, MS. This area included approximately 364 km (226 mi) of the lower Pearl River, 21 km (13 mi) of the Strong River, and 322 km (200 mi) of Bogue Chitto River for a total of approximately 708 km (440 mi), all of which is below the Ross Barnett Reservoir (compiled from MMNS 2016, unpublished data; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 2-5, Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4; Suttkus et al. 1994, pp. 15-18).

    Despite annual collection efforts by Suttkus from 1958 to 1973 (Bart and Suttkus 1996, pp. 3-4; Bart and Suttkus 1995, pp. 13-14; Suttkus et al. 1994, pp. 15-18), the Pearl darter was collected from only 14 percent of 716 fish collections from site-specific locations within the Pearl River drainage. There have been no records of Pearl darters from the Pearl River drainage since 1973, despite Suttkus' 64 fish collections from this time through the middle 1990s from the Pearl River (Bart and Piller 1997, p. 1) and other various collection efforts in the lower Pearl River system (Roberts 2015, pers. comm.; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499). There are no records of Pearl darters in the upper Pearl River system (upstream of the Ross Barnett Dam), and collection efforts by Schaefer and Mickel in 2011 (p. 10) confirmed its absence from this part of the Pearl River. A recent survey at the type locality in the Strong River verified its absence from that area also (Roberts 2015, pers. comm.). There have been no verifiable records of the Pearl darter from the Pearl River drainage in over 40 years, thus, this species is considered extirpated from that system, representing a 57 percent loss of its historical range.

    Pascagoula River Watershed—Site records from museum fish collections before 2005 suggested that the Pearl darter inhabited the main channels of large Pascagoula drainage tributaries from Jackson to Lauderdale Counties (Ross 2001, pp. 499-500). Although collection data from Ross (2001, p. 500), Bart and Piller (1997, p. 4), Bart and Suttkus (1996, p. 4), and Suttkus et al. (1994, p. 19) suggested that the Pearl darter was very rare in the Pascagoula River system. Bart and Piller (1997, p. 4) examined Suttkus' work before 1974 and found that only 19 Pearl darters were collected out of 19,300 total fish in 10 Tulane University Museum of Natural History collections. Additionally, from the Mississippi Freshwater Fishes Database, Ross (in Bart and Piller 1997, p. 4) estimated the rarity of the Pearl darter within the Pascagoula drainage from 379 collections (81,514 fish specimens) since 1973 and found that only one Pearl darter was collected for every 4,795 specimens. This species' historical range within the Pascagoula River system totaled approximately 539 km (335 mi), which included 48 km (30 mi) of the Pascagoula River, 11 km (7 mi) of Black Creek, 131 km (82 mi) of the Leaf River, 34 km (21 mi) of Okatoma Creek, 262 km (163 mi) of the Chickasawhay River, 39 km (24 mi) of the Bouie River, and 13 km (8 mi) of Chunky Creek (compiled from MMNS 2016 unpublished data; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 1-28; Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4; Suttkus et al. 1994, p. 19; Ross et al. 1992, pp. 2-10).

    Current Range and Population Size

    Today, Pearl darters are thought to occur only in scattered sites within approximately 449 km (279 mi) of the Pascagoula drainage, including the Pascagoula, Chickasawhay, Chunky, Leaf, and Bouie Rivers, and Okatoma and Black Creeks. In recent years, the species has been found sporadically within the Pascagoula, Chickasawhay, and Leaf Rivers. There have been no collecting attempts within the Bouie and Chunky Rivers, nor Okatoma and Black Creeks, in the last 15 years; thus, the status of populations in those systems is unknown.

    Collections of Pearl darters over the last 20 years in the Pascagoula River drainage have included: 10 Pearl darters from 4 sites out of 27 fish collections in 1996 and 1997 from the Pascagoula River (Bart and Piller 1997, p. 3); 3 specimens from the Leaf River in 1998; and 7 collections (total of 45 Pearl darters) in the Pascagoula River at the confluence with Big Black Creek (Dead Lake) and downstream of Dead Lake for 22 km (14 mi) (Slack et al. 2002, p. 15). Slack et al. (2005, p. 5) sampled for Pearl darters within the Leaf and Chickasawhay rivers beginning near the confluence with the Pascagoula River and extending through portions of the Chickasaway and Leaf Rivers. The species was present in 78 localities among the 2 systems but were typically in low abundance when present. These survey efforts by Slack et al. (2005, pp. 1-15) indicated range of the Pearl darter within the Pascagoula drainage system was further upstream than previously known.

    Over the last 15 years, Pearl darters have been found from late summer through fall in the upper Pascagoula River drainage (Leaf and Chickasawhay Rivers) and in the lower Pascagoula River proper in spring and summer (Clark and Schaeffer 2015, pp. 3, 9-10, 19, 23; Slack et al. 2002, p. 8). Young of Year (YOY) (fish from the current breeding season) were collected in both 2013 and 2014 in the Chickasawhay and Leaf Rivers, indicating the existence of reproducing populations and recruitment in both of those systems (Clark and Schaeffer 2015, pp. 10, 19, 23). Schaefer and Mickle (2011, pp. 1-3) highlighted similarities in numbers of Pearl darters collected historically from the Pascagoula River Basin museum collections from 2000 to 2009 and found them to trend closely with the CPUE (Catch per Unit Effort) of 1980 to 1999 collections. Clark and Schaefer (2015, pp. 5, 9) recently resampled collection sites of Slack et al. (2005, pp. 1-13) in the Leaf and Chickasawhay Rivers, within the upper Pascagoula River, and found CPUE similar between the 2004 and 2014 surveys. Together, Clark and Schaefer (2015, pp. 5, 9), Schaefer and Mickle (2011, pp. 1-3) and Slack et al. (2005, pp. 1-13) suggest a stable population of Pearl darters has existed within these rivers in the upper Pascagoula River Basin over the last decade and speculate that populations may exist in small numbers within the other systems not recently sampled (e.g., Chunky and Bouie Rivers, Okatoma and Black creeks).

    Habitat

    The Pearl darter occurs in low-gradient, coastal plain rivers (Suttkus et al. 1994, p. 13). The species is considered rare and is infrequently collected; however, its preference for deep water, main channels, and its association with woody debris accumulations can make sampling difficult (Bart and Piller 1997, p. 1). Pearl darters have been collected from gravel riffles and rock outcrops; deep runs over gravel and sand pools below shallow riffles; swift (90 cm per sec (35 in. per sec)), shallow water over firm gravel and cobble in mid-river channels; and swift water near brush piles. Slack et al. (2002, p. 10) found Pearl darters associated with scour holes on the inside bend of the river downstream from point bars and in substrata of coarse sand with detritus in troughs perpendicular to the shore line. Other collectors (Clark and Schaefer, 2015, pp. 11, 12, 19; Slack et al. 2005, p. 9; Bart and Piller 1997, p. 10) have found Pearl darters in areas with finer substrate (i.e., loose sand, mud, silt), including a collection in loose detritus formed from a large scouring flood event (Clark and Schaefer 2015, p. 19). Very little aquatic vegetation was found in the areas where Slack et al. (2005, p. 9) collected the species.

    Biology

    Very little is known about the reproductive biology and general ecology of the Pearl darter (Ross 2001, p. 499). Most Pearl darters mature in 1 year. Female Pearl darters are sexually mature at 39 mm (1.5 in) SL, while males are mature at 42 mm (1.7 in.) SL (Suttkus et al. 1994, pp. 19-20). Breeding males have been observed during May in shallow water (15 cm (5.9 in.)) over firm gravel and cobble in mid channel in water temperatures from 17 to 21 degrees Celsius (°C) (62.6 to 69.8 degrees Fahrenheit (°F)) (Bart and Piller 1997, p. 9; Suttkus et al. 1994, p. 19). It is thought that subadult Pearl darters migrate upstream during the fall and winter to spawn in gravel reaches (Bart et al. 2001, p. 14). Spawning of Pearl darters in the Pearl and Strong Rivers (Mississippi) has been documented during March through May in the upper reaches of the Bogue Chitto River (Mississippi and Louisiana) (Suttkus et al. 1994, pp. 19-20). YOY Pearl darters were collected in June from the Pearl River (Suttkus et al. 1994, p. 19). Bart and Pillar (1997, pp. 6-7) described the Strong River rapids area, near the geological outcroppings, as an important historical spawning habitat for the species in the Pearl River system.

    Summary of Biological Status and Threats

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal 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. Each of these factors is discussed below:

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    All members of Cottogaster are undergoing range contractions and are of potential conservation concern throughout their respective distributions (Dugo et al. 2008, p. 3; Warren et al. 2000, pp. 7-8; Goodchild 1994, pp. 433-435). The Pearl darter has been extirpated from the Pearl River drainage, representing an approximately 57 percent loss of its historical range. Suttkus et al. (1994, p. 19) attributed the loss of the Pearl darter in the Pearl River to increasing sedimentation from habitat modification caused by the removal of riparian vegetation and extensive cultivation near the river's edge. In addition, the decline of the species in the Pearl River was likely exacerbated by the construction of low sill dams by the West Pearl Navigation Waterway, which blocked fish passage and is thought to have led to the extirpation of the Alabama shad (Alosa alabamae) from the system (Mickel et al. 2010, p. 158).

    Water Quality Degradation

    Similar to the Pearl River system, the Pascagoula River system suffers from acute and localized water quality degradation by nonpoint source pollution in association with land surface, stormwater, and effluent runoffs from urbanization and municipal areas (Mississippi Department of Environmental Quality (MDEQ) 2005c, p. 23; 2005d, p. 16). TMDLs (Total Maximum Daily Loads; regulatory term in the U.S. Clean Water Act describing a benchmark set for a certain pollutant to bring water quality up to the applicable standard) have been established for 89 segments of the Pascagoula River Basin, many of which include portions of the Pearl darter's range (MDEQ 2014a, pp. 18-21). For sediment, one of the most pervasive pollutants, the State of Mississippi has TMDLs for various tributaries and main stems of the Leaf and Chickasawhay Rivers. To date, efforts by the State of Mississippi to improve water quality in the Pascagoula River basin to meet these TMDL benchmarks have been inadequate (MDEQ 2014a, pp. 18-21). Thirty-nine percent of the Pascagoula River Basin tributaries are rated fair or poor due to pollution impacts (MDEQ 2014a, pp. 18-21; MDEQ 2008a, p. 17).

    Nonpoint source pollution is a localized threat to the Pearl darter within the drainage, and is more prevalent in areas outside those lands protected by The Nature Conservancy and other areas managed by the State of Mississippi where Best Management Practices (BMPs) are utilized. Most water quality threats outside of protected lands are due to increased sediment loads and variations in pH (MDEQ 2014a, pp. 1-51; 2008a, pp. 13-15). Sediment in stormwater runoff increases water turbidity and temperature and originates locally from poorly maintained construction sites, timber harvest tracts, agricultural fields, clearing of riparian vegetation, and gravel extraction in the river floodplain. Excessive sediments disrupt feeding and spawning of fish and aquatic insects, abrade and suffocate periphyton (mixture of algae, bacteria, microbes, and detritus that is attached to submerged surfaces), and impact fish growth, survival, and reproduction (Waters 1995, pp. 55-62). A localized portion of the Chickasawhay River is on the State Section 303(d) List of Water Bodies as impaired due to sediment (MDEQ 2005b, p. 17).

    Additionally, some contaminants may bind with one another within the Pascagoula River drainage (i.e., heavy metals bind with sediments or other contaminants in the water column). These bound chemical contaminants have not been addressed in TMDLs. Only seven TMDLs for metals have been completed (MDEQ 2008a, pp. 1-55). The Davis Dead River, a tributary at the most downstream site of the Pearl darter's range, is considered critically impaired by mercury (MDEQ 2011, pp. 1-29), and fish consumption advisories continue for mercury in certain gamefish species in the Pascagoula River main stem (MDEQ 2008a, p. 43).

    There are 15 permitted point source discharge sites within the Bouie River system (MDEQ 2005a, p. 6) and an unknown amount of nonpoint runoff sites. Municipal and industrial discharges during periods of low flow (i.e., no or few rain events) intensify water quality degradation by increasing water temperatures, lowering dissolved oxygen, and changing pH. Within the Pascagoula River basin, pollutants causing specific channel or river reach impairment, (i.e., those pollutants preventing the water body from reaching its applicable water quality standard (Environmental Protection Agency (EPA) 2012, pp. 1-9), include sedimentation (117 km (73 mi)); chemicals and nutrients in the water column (50 km (31 mi)); and various toxins, such as heavy metals like lead or cadmium (137 km (85 mi)). TMDLs were completed for pesticides such as DDT, toxaphene, dioxin, and pentachlorophenol, although much of the data and results are not finalized and remain unavailable for the designated reaches (EPA 2012, pp. 1-7; MDEQ 2003, pp. 5-10; Justus et al. 1999, p. 1; MDEQ 1994, pp. 1-13). No Pearl darters have been collected in the Bouie River (Bart et al. 2001, pp. 6-7) since 1997 (Ross et al. 2000, p. 3), though there is no specific data correlating the species' decline to the presence of these toxins.

    Localized wastewater effluent into the Leaf River from the City of Hattiesburg is negatively impacting water quality (Hattiesburg American 2015, pp. 1-2; Mississippi River Collaboration 2014, p. 1; The Student Printz 2014, pp. 1-2). Existing housing, recreational cabins, and trailers along the banks of the Leaf River between I-59 to the town of Estabutchie add nutrient loading through sewage and septic water effluent (Mississippi River Collaboration 2014, p. 1). In 1997, Bart and Piller (p. 12) noted extensive algal growth during warmer months in the Leaf and Bouie Rivers, indicating nutrient and organic enrichment and decreases in dissolved oxygen and pH changes. Today, at specific locations, the water quality of the Bouie and Leaf Rivers continues to be negatively impacted by organic enrichment, low dissolved oxygen, fecal coliform and elevated nutrients (MDEQ 2005a, pp. 1-26; 2004, pp. 1-29).

    Oil and Gas Development

    Nonpoint and point source pollution from oil and gas exploration, including drill field construction, active drilling, and pipeline easements, may add localized pollutants into the Pascagoula River Basin during stormwater runoff events if BMPs are not used. There is one major oil refinery within the basin along with 6 oil pumping stations, 10 major crude pipelines, 4 major product oil pipelines, and 5 major gas and more than 25 lesser gas lines stretching hundreds of miles and crisscrossing the main stem Pascagoula, Bouie, Leaf, and Chickasawhay Rivers and tributaries; in addition, there are more than 100 active oil producing wells within the Pearl darters' watersheds (compiled from Oil and Gas map of Mississippi in Phillips 2013, pp. 10, 23). All have the potential to rupture and/or leak and cause environmental and organismal damage as evidenced by the Genesis Oil Co. and Leaf River oil spill of 2000 (Environmental Science Services, Inc. 2000, pp. 1-50; Kemp Associates, PA, 2000, pp. 4-5; The Clarion-Ledger, December 23, 1999, p. 1B) and Genesis Oil spill in Okatoma Creek in February 2016 (Drennen pers. observ. 2016). In addition to gas pipelines, there are numerous railways that cross Pearl darter habitat that are subject to accidental and catastrophic spilling of toxins such as fuel oil, methanol, resin, and fertilizer (MDEQ 2014b, pp. 1-23).

    Alternative oil and gas collection methods (i.e., hydraulic fracturing (“fracking”) and horizontal drilling and injection) have allowed for the expansion of oil and gas drilling into deposits that were previously inaccessible (Phillips 2013, p. 21), which has led to increased activity within southern Mississippi, including portions of the Pascagoula River Basin. There are more than 100 water injection disposal wells and enhanced oil recovery wells within the Basin (compiled from Active Injection Well Map of Mississippi in Phillips 2013, p. 49). A variety of chemicals (e.g., hydrochloric acid, surfactants, potassium chloride) are used during the drilling and fracking process (Colborn et al. 2011, pp. 1040-1042), and their wastes are stored in open pits (retention basins) or storage facilities. Spills during transport or releases due to retention basin failure or overflow pose a risk for surface and groundwater contamination, which can cause significant adverse effects to water quality and aquatic organisms that inhabit these watersheds (Osborn et al. 2011, pp. 8172-8176; Kargbo et al. 2010, pp. 5680-5681; Wiseman 2009, pp. 127-142). There is currently no routine water quality monitoring in areas where the Pearl darter currently occurs, so it is unlikely that the effects of a leak or spill would be detected quickly to allow for a timely response.

    Geomorphology Changes

    Pearl darters are not found in impounded waters and are intolerant of lentic (standing water) habitats that may be formed by gravel mining or other landscape-altering practices. The results of historical sand and gravel dredging impacts have been a concern for the Bouie and Leaf Rivers (MDEQ 2000, pp. 1-98). Historically, the American Sand and Gravel Company (ASGC) (1995, p. B4) has mined sand and gravel using a hydraulic suction dredge, operating within the banks or adjacent to the Bouie and Leaf Rivers. Large gravel bars of the river and its floodplain have been removed over the past 50 years, creating open-water areas that function as deep lake systems (ASGC 1995, pp. B4-B8). The creation of these large, open-water areas has accelerated geomorphic processes, specifically headcutting (erosional feature causing an abrupt drop in the streambed), that has adversely affected the flora and fauna of many coastal plain streams (Patrick et al. 1993, p. 90). Mining in active river channels typically results in incision upstream of the mine by knickpoints (break in the slope of a river or stream profile caused by renewed erosion attributed to a bottom disturbance that may retreat upstream), sediment deposition downstream, and an alteration in channel morphology that can have impacts for years (Mossa and Coley 2004, pp. 1-20). The upstream migration of knickpoints, or headcutting, may cause undermining of structures, lowering of alluvial water tables (aquifer comprising unconsolidated materials deposited by water and typically adjacent to rivers), channel destabilization and widening, and loss of aquatic and riparian habitat. This geomorphic change may cause the extirpation of riparian and lotic (flowing water) species (Patrick et al. 1993, p. 96). Lyttle (1993, p. 70) and Brown and Lyttle (1992, pp. 2, 46) found that instream gravel mining reduces overall fish species diversity in Ozark streams and favors a large number of a few small fish species, such as the Central stoneroller (Campostoma anomalum) and most darters (Etheostoma sp.).

    The decline of the Pearl darter in the Bouie River and Black Creek may be from sedimentation caused by unstable banks and loose and unconsolidated streambeds (Bart and Piller 1997, p. 12). Mossa and Coley (2004, p. 17) determined that, of the major tributaries in the Pascagoula basin, the Bouie River was the least stable. Channel enlargement of the Bouie River showed higher than background values associated with avulsions (the rapid abandonment of a river channel and the formation of a new river channel) into floodplain pits and increased sedimentation. In addition, channel enlargement of 400 to 500 percent in the Bouie River has occurred at specific sites due to instream gravel mining (Mossa et al. 2006, entire; Mossa and Coley 2004, p. 17). Ayers (2014, pp. 43-45) also found significant and lengthy instream channel form changes in the Chickasawhay River floodplain. Clark and Schaefer (2015, pp. 13-14) noted a slight decrease in fish species richness in the upper Pascagoula River basin from their 2004 sampling, which they attributed to past anthropogenic influences such as gravel mining, bankside practices, and construction.

    In the Bogue Chitto River of the Pearl River basin, Stewart et al. (2005, pp. 268-270) found that the assemblages of fishes had shifted over 27 years. In this time period, the sedimentation rates within the system had increased dramatically and caused the decrease in the relative abundance of all fish in the family Percidae (Stewart et al. 2005, pp. 268-270) from 35 percent to 9 percent, including the extirpation of Pearl darters. Ross et al. (1992, pp. 8-9) studied threats to the Okatoma Creek (Pascagoula Basin) fish diversity and predicted that geomorphic changes to the stream would reduce the fish habitat diversity resulting in a decline of the fish assemblages, including the rare Pearl darter.

    Impoundments

    The proposed damming of Little and Big Cedar Creeks, tributaries to the Pascagoula River, for establishment of two recreational lakes (George County Lakes) (U.S. Army Corps of Engineers 2015, pp. 1-13) has prompted the American Rivers organization to recently list the Pascagoula River as the 10th most endangered river in the country (American Rivers 2016, pp. 20-21). Though the proposed project is not directly within known Pearl darter habitat, the lakes will decrease water quantity entering the lower Pascagoula Basin, and will likely concentrate pollutants, reduce water flow, and alter downstream food webs and aquatic productivity (Poff and Hart 2002, p. 660).

    Summary of Factor A

    Habitat modification and resultant water quality degradation are occurring within the Pearl darter's current range. Increased sedimentation from the removal of riparian vegetation and extensive cultivation is thought to have led to the extirpation of the Pearl darter from the Pearl River drainage. Water quality degradation occurs locally from point and nonpoint source pollution in association with land surface, stormwater, and effluent runoff from urbanization and municipal areas. Increased sediment from a variety of sources, including geomorphological changes and bank instability from past habitat modification, appears to be the major contributor to water quality declines in this species' habitat. Localized sewage and waste water effluent also pose a threat to this species and its habitat. The Pearl darter's vulnerability to catastrophic events, particularly the release of pollutants in its habitat from oil spills, train derailments, and hydraulic fracturing, is also a concern due to the abundance of oil wells, pumping stations, gas lines, and railways throughout its habitat, and the increased interest in alternative oil and gas collection methods in the area. The proposed damming of Big and Little Cypress creeks may decrease water flow and increase nutrients and sedimentation into the Pascagoula River. These threats continue to impact water quality and habitat conditions through much of this species' current range. Therefore, we conclude that habitat degradation is presently a moderate threat to the Pearl darter that is expected to continue and possibly increase into the future.

    Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    In general, Pearl darters are unknown to the public and are not used for either sport or bait purposes. Therefore, collection of this species by the public is not currently identified as a threat. Scientific collecting is controlled by the State through permits; thus, scientific collecting and take by private and institutional collectors are not presently identified as threats. Therefore, overutilization for commercial, recreational, scientific, or educational purposes does not pose a threat to the Pearl darter now or in the future.

    Factor C: Disease or Predation

    Predation on the Pearl darter by other fish, reptiles, and other organisms undoubtedly occurs; however, there is no evidence to suggest that any predators threaten this species. There is also no evidence that disease is a threat. Therefore, neither disease nor predation poses a threat to the Pearl darter now or in the future.

    Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The State of Mississippi classifies the Pearl darter as endangered in the State (Mississippi Natural Heritage Program 2015, p. 2), and prohibits the collection of the Pearl darter for scientific purposes without a State-issued collecting permit. However, as discussed under Factor B, we have no evidence to suggest that scientific collection poses a threat to this species. This State endangered designation conveys no legal protection for the Pearl darter's habitat nor prohibits habitat degradation, which is the primary threat to the species. The Pearl darter receives no protection in Louisiana, where it is considered historic in the State (Louisiana Department of Wildlife and Fisheries 2016, p. 5).

    The Pearl darter and its habitats are afforded some protection from water quality and habitat degradation under the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.) and the Mississippi Water Pollution Control Law, as amended, 1993 (Code of Mississippi, §§ 49-17-1, et seq.) and regulations promulgated thereunder by the Mississippi Commission on Environmental Quality. Although these laws have resulted in some temporary enhancement in water quality and habitat for aquatic life, they have been inadequate in fully protecting the Pearl darter from sedimentation and other nonpoint source pollutants.

    The State of Mississippi maintains water-use classifications through issuance of National Pollutant Discharge Elimination System permits to industries, municipalities, and others that set maximum limits on certain pollutants or pollutant parameters. For water bodies on the Clean Water Act section 303(d) list, the State is required to establish a TMDL for the pollutants of concern that will improve water quality to the applicable standard. The establishment of TMDLs for 89 river or stream segments and ratings of fair to poor for 39 percent of the tributaries within the Pascagoula basin are indicative of pollution impacts within the Pearl darter's habitat (MDEQ 2008a, p. 17). TMDLs are not an enforced regulation, and only reflect benchmarks for improving water quality; they have not been successful in reducing water quality degradation within this species' habitat.

    Mississippi Surface Mining and Reclamation Law, Miss. Code Ann. § 53-7-1 et seq., and Federal laws regarding oil and gas drilling (42 U.S.C. 6921) are generally designed to protect freshwater resources like the Pearl darter, but these regulatory mechanisms do not contain specific provisions requiring an analysis of project impacts to fish and wildlife resources. They also do not contain or provide for any formal mechanism requiring coordination with, or input from, the Service or the Mississippi Department of Wildlife, Fisheries and Parks regarding the presence of federally endangered, threatened, or candidate species, or other rare and sensitive species. In the case of surface mining, penalties may be assessed if damage is serious, but there is no immediate response for remediation of habitats or species. As demonstrated under Factor A, periodic declines in water quality and degradation of habitat for this species are ongoing despite these protective regulations. These mechanisms have been inadequate to protect the species from sediment runoff and turbidity within its habitat associated with land surface runoff and municipal/industrial discharges, as described under Factor A. There are currently no requirements within the scope of other statewide environmental laws to specifically consider the Pearl darter or ensure that a project will not significantly impact the species.

    The Pearl darter likely receives ancillary protection (i.e., water quality improvements, protection from geomorphological changes) where it co-occurs with two other federally listed species, the Gulf sturgeon (Acipenser oxyrhynchus desotoi) and yellow blotched map turtle (Graptemys flavimaculata), during the course of consultation on these species under section 7 of the Act. However, protective measures through section 7 of the Act would only be triggered for those projects having a Federal nexus, which would not address many of the water quality disturbances caused by industry, municipalities, agriculture, or private landowners.

    Additional ancillary protection of 53,520 hectares (ha) (132,128 acres (ac)) within the Pascagoula basin watershed occurs due to the Mississippi Wildlife, Fisheries and Parks' management of six Wildlife Management Areas (WMAs) within the drainage for recreational hunting and fishing. Point and nonpoint sediment sources are decreased or reduced by using and monitoring BMP's during silviculture, road maintenance, and other landscape-altering methods. Four of the six WMAs (Chickasawhay and Leaf Rivers, Mason and Red Creeks) do not directly border the river system, but they do contain and protect parcels of upland buffer, wetland, and tributaries to the basin. The Pascagoula River and Ward Bayou WMAs include 20,329 ha (50,234 ac) consisting of mainly wetland buffer and river/stream reach of the basin within the current range of the Pearl darter, protecting approximately 106 km (66 mi) of the Pascagoula River main stem (Stowe, pers. comm., 2015). The Nature Conservancy (TNC) protects 14,164 ha (35,000 ac) within the Pascagoula River watershed and approximately 10 km (6 mi) of the Pascagoula River shoreline in Jackson County, Mississippi. Of that amount, the Charles M. Deaton Nature Preserve (1,336 ha, 3,300 ac) protects the headwaters of the Pascagoula River, where the Leaf and Chickasawhay Rivers converge, and is part of a 19,020-ha (47,000-ac) swath of public lands surrounding the Pascagoula River, which includes approximately 8 km (5 mi) of the Chickasawhay River and approximately 7 km (4 mi) of the Leaf River shorelines (Becky Stowe 2015, pers. comm.).

    These State-managed WMAs and TNC preserves provide a measure of protection for approximately 134 km (84 mi) or 30 percent of the river reaches within this species' current range. Even though 116 of these 134 km (72 of 84 mi) are located within the Pascagoula River mainstem, only short segments of shoreline are protected in the Chickasawhay and Leaf Rivers. The remaining segments, not within WMA's and TNC preserves, are vulnerable to farming and timbering to the bankside edge, and construction of structures such as houses, septic facilities, dams, and ponds. Each land management action increases stormwater runoff laden with sediment and agricultural and wastewater chemicals.

    Summary of Factor D

    Outside of the areas protected or managed by the State and TNC, and despite existing authorities, such as the Clean Water Act, pollutants continue to impair the water quality throughout much of the current range of the Pearl darter. State and Federal regulatory mechanisms have helped reduce the negative effects of point source and nonpoint source discharges, yet there is inconsistency in the implementation of these regulations and BMPs, which are not mandatory for all activities. Thus, we conclude that existing regulatory mechanisms do not adequately protect the Pearl darter from the impact of other threats.

    Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence Small Population Size and Loss of Genetic Diversity

    The Pearl darter is included on the Southeastern Fishes Council list of the 12 most imperiled species (Kuhajda et al. 2009, pp. 17-18). This species has always been considered rare (Deacon et al. 1979, p. 42) and is currently restricted to localized sites within the Pascagoula River drainage. Genetic diversity has likely declined due to fragmentation and separation of reproducing Pearl darter populations. Kreiser et al. (2012, p. 12) found that disjunct populations of Pearl darters within the Leaf and Chickasawhay Rivers showed some distinct alleles suggesting that gene flow between the two rivers was restricted and perhaps that the total gene pool diversity was declining.

    Species that are restricted in range and population size are more likely to suffer loss of genetic diversity due to genetic drift, potentially increasing their susceptibility to inbreeding depression, decreasing their ability to adapt to environmental changes, and reducing the fitness of individuals (Allendorf and Luikart 2007, pp. 117-146; Soulé 1980, pp. 157-158). It is likely that some of the Pearl darter populations are below the effective population size required to maintain long-term genetic and population viability (Soulé 1980, pp. 162-164). Collecting data (Ross 2001, p. 500; Bart and Piller 1997, p. 4; Bart and Suttkus 1996, p. 4; Suttkus et al. 1994, p. 19) indicate that the Pearl darter is rare in the Pascagoula River system, as when this species is collected it is typically in low numbers and a disproportionately low percentage of the total fish collected.

    In addition, preliminary information indicates that there may be low genetic diversity within the Pearl darter populations, especially among populations within the Leaf and Chickasawhay Rivers where it appears gene flow between the two rivers may be restricted (Kreiser et al. 2013, pp. 14-17). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). The presence of viable, separate populations is essential for a species to recover and adapt to environmental change (Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). Inbreeding and loss of neutral genetic variation associated with small population size reduce the fitness of the population (Reed and Frankham 2003, pp. 230-237) and accelerate population decline (Fagan and Holmes 2006, pp. 51-60). The species' small numbers within scattered locations coupled with its lack of genetic variability may decrease the species' ability to adapt or recover from major hydrological events that impact potential spawning habitat (Clark and Schaeffer 2015, pp. 18-22).

    Hurricanes

    Fish and aquatic communities and habitat, including that of the Pearl darter, may be changed by hurricane influences (Schaefer et al. 2006, pp. 62-68). In 2005, Hurricane Katrina destroyed much of the urban and industrial areas along the lower Pascagoula River basin and also impacted the ecology upriver to the confluence with the Leaf and Chickasawhay Rivers. Many toxic chemicals that leaked from grounded and displaced boats and ships, storage facilities, vehicles, septic systems, business sites, and other sources were reported in the rivers, along with saltwater intrusion from the Gulf of Mexico. Initial assessment identified several fish kills and increased surge of organic material into the waters, which lowered dissolved oxygen levels (Schaefer et al. 2006, pp. 62-68).

    Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2014, p. 3). Numerous long-term climate changes have been observed including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns, and aspects of extreme weather including droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones (IPCC 2014, p. 4). Species that are dependent on specialized habitat types, limited in distribution, or at the extreme periphery of their range may be most susceptible to the impacts of climate change (see 75 FR 48911, August 12, 2010); however, while continued change is certain, the magnitude and rate of change is unknown in many cases.

    Climate change has the potential to increase the vulnerability of the Pearl darter to random catastrophic events (Thomas et al. 2004, pp. 145-148; McLaughlin et al. 2002, pp. 6060-6074). An increase in both severity and variation in climate patterns is expected, with extreme floods, strong storms, and droughts becoming more common (IPCC 2014, pp. 58-83). Thomas et al. (2004, pp. 145-148) report that frequency, duration, and intensity of droughts are likely to increase in the Southeast as a result of global climate change. Kaushal et al. (2010, p. 465) reported that stream temperatures in the Southeast have increased roughly 0.2-0.4 °C (0.3-0.7 °F) per decade over the past 30 years, and as air temperature is a strong predictor of water temperature, stream temperatures are expected to continue to rise. Predicted impacts of climate change on fishes, related to drought, include disruption to their physiology (e.g., temperature tolerance, dissolved oxygen needs, and metabolic rates), life history (e.g., timing of reproduction, growth rate), and distribution (e.g., range shifts, migration of new predators) (Comte et al. 2013, pp. 627-636; Strayer and Dudgeon 2010, pp. 350-351; Heino et al. 2009, pp. 41-51; Jackson and Mandrak 2002, pp. 89-98). However, estimates of the effects of climate change using available climate models typically lack the geographic precision needed to predict the magnitude of effects at a scale small enough to discretely apply to the range of a given species. Therefore, there is uncertainty about the specific effects of climate change (and their magnitude) on the Pearl darter; however, climate change is almost certain to affect aquatic habitats in the Pascagoula River basin through increased water temperatures and more frequent droughts (Alder and Hostetler 2013, pp. 1-12), and species with limited ranges, fragmented distributions, and small population size are thought to be especially vulnerable to the effects of climate change (Byers and Norris 2011, p. 18). Thus, we consider climate change to be a threat to the Pearl darter.

    Summary of Factor E

    Because the Pearl darter has a limited geographic range, small population numbers, and low genetic diversity, it is vulnerable to several other ongoing natural and manmade threats. These threats include the loss of genetic fitness, susceptibility to spills and other catastrophic events, and impacts from climate change. These threats are current and are likely to continue or increase in the future.

    Cumulative Effects of Factors A Through E

    The threats that affect the Pearl darter are important on a threat-by-threat basis but are even more significant in combination. Due to the loss of the species from the Pearl River system, the Pearl darter is now confined to a single drainage system. The species is continuing to experience water quality degradation from point and nonpoint source pollution in association with land-altering activities, discharges from municipalities, and geomorphological changes from past gravel mining. The laws and regulations directed at preventing water quality degradation have been ineffective at providing for the conservation of the Pearl darter. Furthermore, these threats and their effect on this species are exacerbated due to the Pearl darter's small population numbers and low genetic diversity, which reduce its genetic fitness and resilience to possible catastrophic events. Though projecting possible synergistic effects of climate change on the Pearl darter is somewhat speculative, climate change and its effects of increased water temperatures and more frequent droughts will have a greater negative impact on species with limited ranges and small population sizes, such as the Pearl darter. While these threats or stressors may act in isolation, it is more probable that many stressors are acting simultaneously (or in combination) on the Pearl darter.

    Proposed Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Pearl darter. As described in detail above, the Pearl darter has been extirpated from about 57 percent of its historical range and it is now confined to the Pascagoula River watershed. The species occurs in low numbers within its current range, and continues to be at risk throughout all of its range due to the immediacy, severity, and scope of threats from habitat degradation and range curtailment (Factor A) and other natural or manmade factors affecting its continued existence (Factor E). Existing regulatory mechanisms have been inadequate in ameliorating these threats (Factor D).

    Anthropogenic activities such as land development, agriculture, silviculture, oil and gas development, inadequate sewage treatment, stormwater runoff, past gravel mining and resultant geomorphological changes, and construction of dams or sills, have all contributed to the degradation of stream habitats and particularly water quality within this species' range (Factor A). These land use activities have led to chemical and physical changes in the mainstem rivers and tributaries that continue to affect the species through negative impacts to its habitat. Specific threats include inputs of sediments, siltation of stream substrates, turbidity, and inputs of dissolved solids. These threats, especially the inputs of dissolved solids and sedimentation, have had profound negative effects on Pearl darter populations and have been the primary factor in the species' decline. Existing regulatory mechanisms (e.g., the Clean Water Act) have provided for some improvements in water quality and habitat conditions across the species' range, but these laws and regulations have been inadequate in protecting the species' habitat (Factor D), as evidenced by the extirpation of the species within the Pearl River basin and the number of section 303(d) listed streams within the species' historical range. The Pearl darter's vulnerability to these threats is even greater due to its reduced range, fragmented populations, small population sizes, and low genetic diversity (Factor E). The effects of certain threats, particularly habitat degradation and loss, increase in magnitude when population size is small (Primack 2012, pp. 150-152).

    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 the Pearl darter is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, based on the immediacy, severity, and scope of the threats currently impacting the species. The overall range has been reduced substantially and the remaining habitat and populations are threatened by a variety of factors acting in combination to reduce the overall viability of the species over time. The risk of becoming endangered is high because populations are confined to a single watershed, most are small in size, and numerous threats are impacting them. However, we find that endangered species status is not appropriate. Despite low population numbers and numerous threats, populations in the Chickasawhay and Leaf Rivers, which are the largest, appear to be stable and reproducing. In addition, the magnitude of threats is considered to be moderate overall, since the threats are having a localized impact on the species and its habitat. For example, water quality degradation, the most prevalent threat, is not as pervasive within areas protected with BMPs, and geomorphic changes, caused by past sand and gravel mining, are also sporadic within its habitat. Therefore, on the basis of the best available scientific and commercial information, we propose listing the Pearl darter as threatened in accordance with sections 3(6) and 4(a)(1) of the Act.

    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 Pearl darter 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 37577, July 1, 2014).

    Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) Essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.”

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that 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 activity and the 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 of take attributed to collection or vandalism under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate 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, a finding that designation is prudent is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for action in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (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 inadvertent harm to the species. Accordingly, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we determine that designation of critical habitat is prudent for the Pearl darter.

    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 (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analysis 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 the species and habitat characteristics where the species is located. On the basis of a review of available information, we find that critical habitat for the Pearl darter is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking, such as information on areas to be proposed for designation and the potential economic impacts associated with designation of these areas. We are in the process of obtaining this information. We will make a determination on critical habitat no later than 1 year following any final listing determination.

    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. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of 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 the species is listed, the recovery outline, draft recovery plan, and the final recovery plan would be available on our Web site (http://www.fws.gov/endangered), or from our Mississippi Ecological Services Field 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 this species 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 Mississippi would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Pearl darter. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the Pearl darter is only proposed for listing under the Act at this time, please let us know if you are interested in participating in conservation efforts for this species. Additionally, we invite you to submit any new information on this species 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 species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of gas and oil pipelines and power line rights-of-way by the Federal Energy Regulatory Commission; Environmental Protection Agency pesticide registration; and construction and maintenance of roads or highways by the Federal Highway Administration.

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

    We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    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. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

    (1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with existing regulations, permit and label requirements, and best management practices.

    (2) Normal residential and urban landscape activities, such as mowing, edging, fertilizing, etc.

    (3) Normal pipeline/transmission line easement maintenance.

    (4) Normal bridge, culvert, and roadside maintenance consistent with appropriate best management practices for these activities.

    Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

    (1) Unauthorized handling or collecting of the species.

    (2) Introduction of nonnative fish that compete with or prey upon the Pearl darter.

    (3) Discharge or dumping of toxic chemicals, contaminants, sediments, waste water effluent, or other pollutants into waters supporting the Pearl darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as spawning, feeding, or sheltering.

    (4) Destruction or alteration of the species' habitat (e.g., unpermitted instream dredging, impoundment, water diversion or withdrawal, channelization, discharge of fill material, modification of tributaries, channels, or banks) that impairs essential behaviors such as spawning, feeding, or sheltering, or results in killing or injuring a Pearl darter.

    (5) Mining, oil and gas processes, silviculture, and agricultural processes that result in direct or indirect destruction of riparian bankside habitat or in channel habitat in waters supporting the Pearl darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as spawning, feeding, or sheltering.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    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

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (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).

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal lands located within the range of this species.

    References Cited

    A complete list of references cited in this proposed rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the Mississippi Ecological Services Field 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—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.

    2. In § 17.11(h), add an entry for “Darter, Pearl” to the List of Endangered and Threatened Wildlife in alphabetical order under FISHES to read as set forth below:
    § 17.11 Endangered and threatened wildlife. Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Fishes *         *         *         *         *         *         * Darter, Pearl Percina aurora Wherever found T [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. 2016-22752 Filed 9-20-16; 8:45 am] BILLING CODE 4333-15-P
    81 183 Wednesday, September 21, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Rio Grande National Forest; Colorado; Revision of the Land Management Plan for the Rio Grande National Forest; Correction AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent; correction.

    SUMMARY:

    The USDA Forest Service published a notice of intent to prepare an environmental impact statement in the Federal Register of September 12, 2016. The document contains confusing language regarding establishing standing for participation in the agency's admininstrative review process.

    FOR FURTHER INFORMATION CONTACT:

    Erin Minks, Plan Revision Team Leader, [email protected], 719-852-6215. Information on plan revision is also available at www.fs.usda.gov/riogrande. 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.

    Correction

    In the Federal Register of September 12, 2016 (81 FR 176), on page 62706, in the third column in the Dates section, correct the section to read:

    DATES:

    Comments concerning the scope of the analysis will be accepted throughout the entire plan revision process. Members of the public who wish to establish standing to participate in the objection process must submit substantive formal comments on the plan revision during one of the opportunities to comment in accordance with 36 CFR 219 subpart B. This scoping period, which ends 45 days from the publication of the Legal Notice in the Valley Courier, is one of the formal periods that can establish standing to object.

    Dated: September 13, 2016. Dan Dallas, Forest Supervisor, Rio Grande National Forest.
    [FR Doc. 2016-22706 Filed 9-20-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Publication of Depreciation Rates AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of depreciation rates for telecommunications plant.

    SUMMARY:

    The United States Department of Agriculture (USDA) Rural Utilities Service (RUS) administers rural utilities programs, including the Telecommunications Program. RUS announces the depreciation rates for telecommunications plant for the period ending December 31, 2015.

    DATES:

    These rates are effective immediately and will remain in effect until rates are available for the period ending December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Keith B. Adams, Assistant Administrator, Telecommunications Program, Rural Utilities Service, STOP 1590—Room 5151, 1400 Independence Avenue SW., Washington, DC 20250-1590. Telephone: (202) 720-9556.

    SUPPLEMENTARY INFORMATION:

    In 7 CFR part 1737, Pre-Loan Policies and Procedures Common to Insured and Guaranteed Telecommunications Loans, § 1737.70(e) explains the depreciation rates that are used by RUS in its feasibility studies. Section 1737.70(e)(2) refers to median depreciation rates published by RUS for all borrowers. The following chart provides those rates, compiled by RUS, for the reporting period ending December 31, 2015:

    Median Depreciation Rates of Rural Utilities Service Borrowers by Equipment Category for Period Ending December 31, 2015 Telecommunications plant category Depreciation
  • rate
  • 1. Land and Support Assets: a. Motor vehicles 16.00 b. Aircraft 11.25 c. Special purpose vehicles 12.00 d. Garage and other work equipment 10.00 e. Buildings 3.30 f. Furniture and office equipment 10.00 g. General purpose computers 20.00 2. Central Office Switching: a. Digital 9.70 b. Analog & Electro-mechanical 10.00 c. Operator Systems 9.90 3. Central Office Transmission: a. Radio Systems 10.00 b. Circuit equipment 10.00 4. Information origination/termination: a. Station apparatus 12.00 b. Customer premises wiring 10.65 c. Large private branch exchanges 10.96 d. Public telephone terminal equipment 12.00 e. Other terminal equipment 10.35 5. Cable and wire facilities: a. Aerial cable—poles 6.42 b. Aerial cable—metal 5.90 c. Aerial cable—fiber 5.00 d. Underground cable—metal 5.00 e. Underground cable—fiber 5.00 f. Buried cable—metal 5.15 g. Buried cable—fiber 5.00 h. Conduit systems 3.93 i. Other 5.00
    Dated: September 13, 2016. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2016-22747 Filed 9-20-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [9/8/2016 through 9/14/2016] Firm name Firm address Date accepted for investigation Product(s) T.D.R.N, Inc 16187 North Balsam Lane, Spalding, MI 49886 9/13/2016 The firm manufactures precision machined metal components, such as studs, collars and spacers. Mayco Industries, LLC 18 West Oxmoor Road, Birmingham, AL 36271 9/14/2016 The firm manufactures lead-based products such as lead shots, antimonial and custom alloys.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-22638 Filed 9-20-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-62-2016] Foreign-Trade Zone (FTZ) 20—Newport News, Virginia, Notification of Proposed Production Activity, Canon Virginia, Inc., Subzone 20D (Toner Cartridges), Newport News, Virginia

    Canon Virginia, Inc. (Canon), operator of Subzone 20D, submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 20D, in Newport News, Virginia. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 2, 2016.

    Canon already has authority to produce a range of printers, copiers and their parts and supplies, including toner, toner cartridges, toner bottles and cartridge parts, within Subzone 20D. The current request would add foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Canon from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, Canon would be able to choose the duty rate during customs entry procedures that applies to toner cartridges (duty free) for the foreign-status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The materials/components sourced from abroad include: Paints and varnishes; plastic sheets/bottles/cases/crates; paper labels; iron or steel screws; and, alloyed aluminum tubes (duty rates range from free to 8.6%).

    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 31, 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 Diane Finver at [email protected] or (202) 482-1367.

    Dated: September 15, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-22767 Filed 9-20-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-61-2016] Foreign-Trade Zone (FTZ) 79—Tampa, Florida, Notification of Proposed Production Activity, Givaudan Flavors Corporation (Flavor Compounds), Lakeland, Florida

    Givaudan Flavors Corporation (Givaudan) submitted a notification of proposed production activity to the FTZ Board for its facility in Lakeland, Florida within FTZ 79. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 12, 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 foreign-status materials and components and 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, Givaudan would be able to choose the duty rates during customs entry procedures that apply to cocoa food preparations, dairy food preparations, coffee food preparations, seasonings, sauces, alcoholic preparations for beverages, other food preparations with dairy, confectionary preparations without sugar, other food preparations, food articles containing sugar, other cyclanes, cyclenes and cycloterpenes, other cyclic hydrocarbons, acyclic terpene alcohols, butanoic acids, pentanoic acids, their salts and esters, concentrated orange oil, concentrated lemon oil, citrus oil blends, aqueous distillates and aqueous solutions of essential oils, terpenic by-products of the deterpenation of essential oils, flavor preparations for food or drink without alcohol, flavor preparations for food or drink with alcohol, odoriferous substances other than food or drink or perfume bases with alcohol, odiferous substances other than food or drink or perfume bases without alcohol (duty rate ranges from free to 70.4c/kg + 8.5%) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.

    The materials sourced from abroad include benzaldehyde, vanillin, orange oil, concentrated orange oil, lemon oil, and concentrated lemon oil (duty rate ranges from 2.7% to 5.5%).

    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 31, 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 15, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-22769 Filed 9-20-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Order Denying Export Privileges

    In the Matter of: Francisco Javier Mendoza-Esquivel, Register Number: 62841-179, Federal Correctional Institution, 2001 Rickabaugh Drive, Big Spring, TX 79720.

    On August 11, 2015, in the U.S. District Court for the Southern District of Texas, Francisco Javier Mendoza-Esquivel (“Mendoza-Esquivel”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Mendoza-Esquivel intentionally and knowingly conspired and agreed to knowingly and willfully export, attempt to export, and cause to be exported into Mexico from the United States a defense article, that is, to wit: Approximately five thousand eight hundred and sixty (5,860) rounds of 7.62 x 39 mm caliber ammunition which were designated as defense articles on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Mendoza-Esquivel was sentenced 51 months of imprisonment and a $100 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2016). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52,587 (Aug. 8, 2016)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

    BIS has received notice of Mendoza-Esquivel's conviction for violating the AECA, and has provided notice and an opportunity for Mendoza-Esquivel to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Mendoza-Esquivel.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Mendoza-Esquivel's export privileges under the Regulations for a period of 10 years from the date of Mendoza-Esquivel's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Mendoza-Esquivel had an interest at the time of his conviction.

    Accordingly, it is hereby Ordered:

    First, from the date of this Order until August 11, 2025, Francisco Javier Mendoza-Esquivel, with a last known address of Register Number: 62841-179, Federal Correctional Institution, 2001 Rickabaugh Drive, Big Spring, TX 79720, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Mendoza-Esquivel by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Mendoza-Esquivel may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Mendoza-Esquivel. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until August 11, 2025.

    Issued this 14th day of September, 2016. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2016-22679 Filed 9-20-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration Advisory Committee on Supply Chain Competitiveness: Notice of Public Meetings AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of open meetings.

    SUMMARY:

    This notice sets forth the schedule and proposed topics of discussion for public meetings of the Advisory Committee on Supply Chain Competitiveness (Committee).

    DATES:

    The meetings will be held on October 19, 2016, from 12:00 p.m. to 3:00 p.m., and October 20, 2016, from 9:00 a.m. to 4:00 p.m., Eastern Standard Time (EST).

    ADDRESSES:

    The meetings on October 19 and 20 will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Research Library (Room 1894), Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Richard Boll, Office of Supply Chain, Professional & Business Services (OSCPBS), International Trade Administration. (Phone: (202) 482-1135 or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Committee was established under the discretionary authority of the Secretary of Commerce and in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2). It provides advice to the Secretary of Commerce on the necessary elements of a comprehensive policy approach to supply chain competitiveness designed to support U.S. export growth and national economic competitiveness, encourage innovation, facilitate the movement of goods, and improve the competitiveness of U.S. supply chains for goods and services in the domestic and global economy; and provides advice to the Secretary on regulatory policies and programs and investment priorities that affect the competitiveness of U.S. supply chains. For more information about the Committee visit: http://trade.gov/td/services/oscpb/supplychain/acscc/.

    Matters To Be Considered: Committee members are expected to continue to discuss the major competitiveness-related topics raised at the previous Committee meetings, including trade and competitiveness; freight movement and policy; information technology and data requirements; regulatory issues; finance and infrastructure; and workforce development. The Committee's subcommittees will report on the status of their work regarding these topics. The agendas may change to accommodate Committee business. The Office of Supply Chain, Professional & Business Services will post the final detailed agendas on its Web site, http://trade.gov/td/services/oscpb/supplychain/acscc/, at least one week prior to the meeting.

    The meetings will be open to the public and press on a first-come, first-served basis. Space is limited. The public meetings are physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Mr. Richard Boll, at (202) 482-1135 or [email protected] five (5) business days before the meeting.

    Interested parties are invited to submit written comments to the Committee at any time before and after the meeting. Parties wishing to submit written comments for consideration by the Committee in advance of this meeting must send them to the Office of Supply Chain, Professional & Business Services, 1401 Constitution Ave. NW., Room 11014, Washington, DC 20230, or email to [email protected]

    For consideration during the meetings, and to ensure transmission to the Committee prior to the meetings, comments must be received no later than 5:00 p.m. EST on October 12, 2016. Comments received after October 12, 2016, will be distributed to the Committee, but may not be considered at the meetings. The minutes of the meetings will be posted on the Committee Web site within 60 days of the meeting.

    In addition, this notice expands the comment period on the ACSCC Freight Policy and Movement Subcommittee's recommendation that was discussed on ACSCC conference call held on September 7, 2016 to October 1, 2016. The recommendation will be available on the ACSCC Web site, http://trade.gov/td/services/oscpb/supplychain/acscc/. Written comments are due by close of business on October 1, 2016. Parties wishing to submit written comments regarding this recommendation must send them to the Office of Supply Chain, Professional & Business Services, 1401 Constitution Ave. NW., Room 11014, Washington, DC 20230, or email to [email protected]

    The Office of Supply Chain, Professional & Business Services will post the draft recommendations and the final agenda on the Committee Web site at least one week prior to the meeting. Please provide any comments on the draft recommendations to Richard Boll, Office of Supply Chain, Professional & Business Services, International Trade Administration. (Phone: (202) 482-1135 or Email: [email protected]) at least six days prior to the conference call, in order to ensure adequate time to distribute the comments for Committee review. The conference call will be open to the public for comments on a first-come, first-served basis, with thirty minutes available for public comments. Access lines are limited. The minutes of the meetings will be posted on the Committee Web site within 60 days of the meeting.

    Dated: September 15, 2016. Maureen Smith, Director, Office of Supply Chain.
    [FR Doc. 2016-22654 Filed 9-20-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-870] Notice of Final Results of Antidumping Duty Changed Circumstances Review: Oil Country Tubular Goods From the Republic of Korea AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On July 18, 2016, the Department of Commerce (the Department) published the notice of initiation and preliminary results of the changed circumstances review of the antidumping duty order on oil country tubular goods from the Republic of Korea (Korea). In that notice, we preliminarily determined that Hyundai Steel Corporation (Hyundai Steel) is the successor-in-interest to Hyundai HYSCO (HYSCO) for purposes of determining antidumping duty cash deposits and liabilities. No interested party submitted comments on the preliminary results. For these final results, the Department continues to find that Hyundai Steel is the successor-in-interest to HYSCO.

    DATES:

    Effective August 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Victoria Cho, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5075.

    SUPPLEMENTARY INFORMATION:

    Background

    On February 24, 2016, Hyundai Steel informed the Department that, effective July 1, 2015, it merged with HYSCO and requested that the Department conduct an expedited changed circumstances review under section 751(b) of the Tariff Act of 1930, as amended, 19 CFR 351.216(c), and 19 CFR 351.221(c)(3)(ii), to confirm that Hyundai Steel is the successor-in-interest to HYSCO for purposes of determining antidumping duty cash deposits and liabilities. On July 18, 2016, the Department initiated this changed circumstances review and published the notice of preliminary results,1 determining that Hyundai Steel is the successor-in-interest to HYSCO.

    1See Certain Oil Country Tubular Goods from the Republic of Korea: Initiation and Expedited Preliminary Results of Changed Circumstances Review, 81 FR 46645 (July 18, 2016) (Initiation and Preliminary Results).

    Scope of the Order

    The merchandise covered by the order is OCTG, which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (e.g., whether or not plain end, threaded, or threaded and coupled) whether or not conforming to American Petroleum Institute (API) or non-API specifications, whether finished (including limited service OCTG products) or unfinished (including green tubes and limited service OCTG products), whether or not thread protectors are attached. The scope of the investigation also covers OCTG coupling stock.

    Excluded from the scope of the order are: Casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.

    The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.

    The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.

    The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.

    Final Results of Changed Circumstances Review

    For the reasons stated in the Initiation and Preliminary Results, and because we received no comments from interested parties, the Department finds that Hyundai Steel is the successor-in-interest to HYSCO. As a result of this determination, we find that Hyundai Steel should receive the cash deposit rate assigned to HYSCO in the most recently completed segment of the antidumping duty order on OCTG from Korea.2 Consequently, the Department will instruct U.S. Customs and Border Protection to suspend liquidation of all shipments of subject merchandise produced or exported by Hyundai Steel and entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the Federal Register at 6.49 percent, which is the current antidumping duty cash-deposit rate for HYSCO. This cash deposit requirement shall remain in effect until further notice.

    2See Certain Oil Country Tubular Goods From the Republic of Korea: Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances, 79 FR 41983 (July 18, 2014) and see also Certain Oil Country Tubular Goods From the Republic of Korea: Notice of Court Decision Not in Harmony With Final Determination, 81 FR 59603 (August 30, 2016).

    Dated: September 14, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-22768 Filed 9-20-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Marine Recreational Information Program Fishing Effort Survey.

    OMB Control Number: 0648-0652.

    Form Number(s): None.

    Type of Request: Regular (revision and extension of a currently approved information collection).

    Number of Respondents: 110,000.

    Average Hours per Response: 10 minutes.

    Burden Hours: 18,333.

    Needs and Uses: Marine recreational anglers are surveyed to collect catch and effort data, fish biology data, and angler socioeconomic characteristics. These data are required to carry out provisions of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), as amended, regarding conservation and management of fishery resources.

    Marine recreational fishing catch and effort data are collected through a combination of mail surveys, telephone surveys and on-site intercept surveys with recreational anglers. Amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSA) require the development of an improved data collection program for recreational fisheries. To partially meet these requirements, NOAA Fisheries designed and implemented the MRIP Fishing Effort Survey (FES) to ensure better coverage and representation of recreational fishing activity.

    The FES is a self-administered, household mail survey that samples from a residential address frame to collect data on the number of recreational anglers and the number of recreational fishing trips. The survey estimates marine recreational fishing activity for all coastal states from Maine through Texas.

    FES estimates are combined with estimates derived from independent but complementary surveys of fishing trips, the Access-Point Angler Intercept Survey, to estimate total, state-level fishing catch, by species. These estimates are used in the development, implementation, and monitoring of fishery management programs by NOAA Fisheries, regional fishery management councils, interstate marine fisheries commissions, and state fishery agencies.

    Affected Public: Individuals or households.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: September 15, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-22647 Filed 9-20-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Tilefish Individual Fishing Quota (IFQ) Program.

    OMB Control Number: 0648-0590.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 12.

    Average Hours per Response: IFQ Allocation Permit Application, 30 minutes; IFQ Holder Cap Form, 5 minutes; IFQ Transfer Form, 5 minutes; IFQ Cost Recovery, 2 hours; IFQ Reporting Requirements, 2 minutes.

    Burden Hours: 42.

    Needs and Uses: This request is for extension of a current information collection.

    National Marine Fisheries Service (NMFS) Greater Atlantic Region manages the golden tilefish fishery of the Exclusive Economic Zone (EEZ) of the Northeastern United States, through the Tilefish Fishery Management Plan (FMP). The Mid-Atlantic Fishery Management Council prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The regulations implementing the FMP are specified at 50 CFR part 648 subpart N.

    The recordkeeping and reporting requirements at § 648.294 form the basis for this collection of information. NMFS requests information from tilefish individual fishing quota (IFQ) permit holders in order to process applications to ensure that IFQ allocation holders are provided a statement of their annual catch quota, and for enforcement purposes, to ensure vessels are not exceeding an individual quota allocation. In conjunction with the application, NMFS also collects IFQ share accumulation information to ensure that an IFQ allocation holder does not acquire an excessive share of the total limited access privileges, as required by section 303A(d)(5)(C) of the Magnuson-Stevens Act.

    NMFS requests transfer application information to process and track requests from allocation holders to transfer quota allocation (permanent and temporary) to another entity. NMFS also collects information for cost recovery purposes as required under the Magnuson-Stevens Act to collect fees to recover the costs directly related to management, data collection and analysis, and enforcement of IFQ programs. Lastly, NMFS collects landings information to ensure that the amounts of tilefish landed and ex-vessel prices are properly recorded for quota monitoring purposes and the calculation of IFQ fees, respectively. Having this information results in an increasingly more efficient and accurate database for management and monitoring of fisheries of the Northeastern U.S. EEZ.

    Affected Public: Business or other for-profit organizations.

    Frequency: Annually and on occasion.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: September 15, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-22648 Filed 9-20-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE United States Patent and Trademark Office Deposit of Biological Materials ACTION:

    Notice and request for comment.

    SUMMARY:

    The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).

    DATES:

    Written comments must be submitted on or before November 21, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Email: [email protected] Include “0651-0022 comment” in the subject line of the message.

    Federal Rulemaking Portal: http://www.regulations.gov.

    Mail: Marcie Lovett, Records Management Division Director, Office of the Chief Information Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-7728; or by email to [email protected] with “0651-0022 comment” in the subject line. Additional information about this collection is also available at http://www.reginfo.gov under “Information Collection Review.”

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This information collection covers both deposits of biological materials and the depositories in which they are stored. While these two topics are related, the information collection requirements for a respondent depositing biological material are not the same as those that must be followed by a respondent seeking approval from the USPTO to store biological materials. These different requirements are addressed in separate sections. Section I.A. deals with the deposit of biological materials and section I.B. deals with the depositories. There are no forms associated with this collection.

    A. Deposits of Biological Materials

    The deposit of biological materials as part of a patent application is authorized by 35 U.S.C. 2(b)(2). The term “biological material” is defined in 37 CFR 1.801 as including material that is capable of self-replication, either directly or indirectly. When an invention involves a biological material, sometimes words and figures are not sufficient to satisfy the statutory requirement for patentability under 35 U.S.C. 112 (every patent must contain a description of the invention sufficient to enable a person (knowledgeable in the relevant science), to make and use the invention as specified by 35 U.S.C. 112). In such cases, the required biological material must either be: (1) Known and readily available (neither condition alone is sufficient) or (2) deposited in a suitable depository that has been recognized as an International Depositary Authority (IDA) established under the Budapest Treaty, or a depository recognized by the USPTO to meet the requirements of 35 U.S.C. 112. Under the authority of 35 U.S.C. 2(b)(2), the deposit rules (37 CFR 1.801-1.809) set forth examining procedures and conditions of deposit which must be satisfied in the event a deposit is required. The rules do not address the substantive issue of whether a deposit is required under any particular set of facts.

    In cases where a deposit is necessary, the USPTO collects information to determine whether the depositor is in compliance with the deposit rules. This includes statements proving notification to the interested public on where to obtain samples of the deposits and confirming that all restriction on access to the deposit will be irrevocably removed upon issuance of the patent. A viability statement also must be submitted to the USPTO showing that the biological material was tested by the depository or another, the conditions of the test, and that it is a viable or acceptable deposit. A viability statement is not required when a deposit is made and accepted under the Budapest Treaty.

    Once a depositor has deposited biological materials into a recognized depository, occasions may arise necessitating additional communication between the depositor and the USPTO. For example, depositors may be required to submit verification statements for biological materials deposited after the effective filing date of a patent application or written notification that an acceptable deposit will be made.

    Occasionally a deposit may be lost, contaminated, or otherwise is not able to self-replicate, and a replacement or supplemental deposit needs to be made. In that event, the depositor must submit a written notification to the USPTO concerning the particulars of the situation and request a certificate of correction by the USPTO authorizing the replacement or supplemental deposit.

    To summarize, the nature of the information collected by the USPTO in association with the deposit of biological materials is that of certifications/statements, as described above, regarding a biological sample deposited at a depository. There is no form associated with the information collected by the USPTO in connection with the deposit of biological materials.

    B. Depositories

    Institutions that wish to be recognized by the USPTO as a suitable depository to receive deposits for patent purposes are required by 37 CFR 1.803 to make a request demonstrating that they are qualified to store and test the biological materials submitted to them under patent applications. A depository seeking recognition from the USPTO to store biological materials must show that internal practices (both technical and administrative) and the technical ability of the staff and the facility are sufficient to protect the integrity of the biological materials being stored.

    USPTO rules are stringent to ensure the competence and quality of depositories. Depositories must submit documentation to the USPTO that verifies that their practices and procedures, the technical competence of their staff, and their facilities fulfill the stringent requirements spelled out under the rules.

    Once a depository has been recognized by the USPTO, occasions may arise where additional communication between the depository and the USPTO is necessary. For example, a depository must request and obtain written approval from the USPTO to handle additional types of biological materials other than the material originally recognized. Depositories may (on behalf of depositors) submit viability statements for deposits tested at the depository and/or documentation proving the public has been notified about where to obtain samples.

    To summarize, the nature of the information collected by the USPTO in connection with a respondent seeking approval from the USPTO to store biological materials is that of a written request to the Director of the USPTO containing the information outlined above. There is no form for the request.

    II. Method of Collection

    By mail, hand delivery, or electronically to the USPTO.

    III. Data

    OMB Number: 0651-0022.

    Form Number(s): None.

    Type of Review: Revision of a currently approved collection.

    Affected Public: Businesses or other for-profits; and not-for-profit institutions.

    Estimated Number of Respondents: 901 responses per year. The USPTO estimates that approximately 3% of these responses will be from small entities.

    Estimated Time per Response: The USPTO estimates that it will take the public 1 hour to gather the necessary information, prepare the appropriate form or documents, and submit the information to the USPTO for a deposit of biological materials. The USPTO estimates that it will take the average depository seeking approval to store biological materials approximately 5 hours to collect and submit the necessary approval information.

    Estimated Total Annual Respondent Burden Hours: 905 hours.

    Estimated Total Annual Respondent Cost Burden: $27,0327.55. The USPTO estimates a professional hourly rate of $30 for a senior administrative assistant to collect and submit the deposit information. The USPTO expects that the average depository seeking approval to store biological material will be prepared by attorneys at an estimated rate of $65.51 (BLS rate; 23-1011 Lawyers) per hour. Therefore, the USPTO estimates that the respondent cost burden for this collection will be approximately $27,327.55 per year.

    No. Item Estimated
  • time for
  • response
  • (minutes)
  • Estimated
  • annual
  • responses
  • Estimated
  • annual
  • burden
  • hours
  • Rate
  • ($/hr)
  • Total
  • costs
  • (a) (b) (a) × (b)/60 = (c) e (c) × (d) = (hourly cost burden) 1 Deposited Materials 1 hour 900 900 30 27,000 2 Depository Approval 5 hours 1 5 65.51 327.55 Total 901 905 27,327.55

    Estimated Total Annual Non-hour Respondent Cost Burden: $2,674,644.45. There are no maintenance costs, recordkeeping costs, or filing fees associated with this information collection. However, this collection has annual (non-hour) costs in the form of capital start-up and postage costs.

    Depositories charge fees to depositors; all depositories charge about the same rates for their services. For example, the American Type Culture Collection (ATCC), one of the world's leading biological supply houses and recognized patent depositories, offers comprehensive patent services for $2,500 per deposit. Most deposits received from outside the United States require an import permit from the U.S. Department of Agriculture (USDA) as well as a Public Health Service (PHS) permit, available from the Centers for Disease Control and Prevention (CDC), for importation of agents infectious to humans. There is no extra charge for this permit application processing. The USPTO estimates that the total non-hour respondent cost burden in the form of capital start-up costs amounts to $2,250,000.

    In addition, this collection has postage costs. Biological deposits are generally shipped to the depository “Domestic Overnight” by Federal Express (FedEx) and, since depositors are urged to supply frozen or freeze-dried material, it must be packed in dry ice according to a representative from the Patent Department at ATCC. Dry ice itself is considered a dangerous good and requires special packaging. Additional FedEx special handling charges for inaccessible dangerous goods shipments of $40 per shipment apply for temperature-sensitive biological materials and also for the dry ice. An average cost for shipping by FedEx “Domestic Overnight” is estimated to be $75. If the shipment requires pick-up by FedEx, there is an additional charge of $4. Special packaging is also required for these shipments. According to DG Supplies Inc., a supplier of infectious and diagnostic goods packaging, the average cost of frozen infectious shippers is estimated to be $352.82 per package of four for specimen shipments requiring refrigeration or dry ice. Therefore, postage costs average $471.82 per shipment. The postage cost for a depository seeking recognition is estimated to be $6.45, sent to the USPTO by priority mail through the United States Postal Service. Since the USPTO estimates that it receives one request for recognition from a depository every four years, the average postage cost to respondents is $6.45 per year.

    Item No. Item/type of cost Estimated
  • annual
  • responses
  • Amount Totals
    FEES 1 Deposited Materials 900 $2,500.00 $2,250,000 2 Request for Depository Approval 1 0.00 0.00 Total Fees 2,250,000 PACKAGING/POSTAGE COSTS 1 Deposited Materials—Federal Express 900 $119.00 $107,100.00 1 Deposited Materials—Packaging Supplies 900 352.82 317,538.00 2 Request for Depository Approval 1 6.45 6.45 Total Postage/Packaging 424,644.45 Total Annual (Non-Hour) Cost Burden 2,674,644.45

    The USPTO estimates that the (non-hour) respondent cost burden in the form of mailing costs amounts to $424,644.45.

    Therefore, the USPTO estimates that the total (non-hour) respondent cost burden for this collection in the form of capital start-up costs and postage costs is $2,674,644.45.

    IV. Request for Comments

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.

    The USPTO is soliciting public comments to:

    (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    Dated: September 15, 2016. Marcie Lovett, Records Management Division Director, OCIO United States Patent and Trademark Office.
    [FR Doc. 2016-22684 Filed 9-20-16; 8:45 am] BILLING CODE 3510-16-P
    PATENT AND TRADEMARK OFFICE Submission for OMB Review; Comment Request, Pro Bono Survey; Correction AGENCY:

    United States Patent and Trademark Office, Commerce.

    ACTION:

    Notice; correction.

    SUMMARY:

    The United States Patent and Trademark Office published a document in the Federal Register on August 22, 2016, concerning requests for comments on a Pro Bono Survey. The Pro Bono Survey is used by the Pro Bono Advisory Council (PBAC) and the USPTO to provide information to the USPTO regarding the current status and effectiveness of each region's pro bono hub. The document contained an incorrect cost burden based on the estimate of the hourly burden rate. The hourly rate estimate should use the Bureau of Labor Statistics hourly wage for lawyers instead of the American Intellectual Property Law Association hourly wage for intellectual property lawyers.

    FOR FURTHER INFORMATION CONTACT:

    John Kirkpatrick, 571-270-3343 or email [email protected] Include “Pro Bono Survey” in the subject line of the message.

    Correction

    In the Federal Register notice published on August 22, 2016 (81 FR 56612), in the second column, correct the “Cost Burden” caption to read:

    Cost Burden: $10,480.00

    Dated: September 13, 2016. Marcie Lovett, Records Management Division Director, USPTO Office of the Chief Information Officer.
    [FR Doc. 2016-22683 Filed 9-20-16; 8:45 am] BILLING CODE 3510-16-P
    DEPARTMENT OF COMMERCE United States Patent and Trademark Office Submission for OMB Review; Comment Request; Legal Processes

    The United States Patent and Trademark Office (USTPO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: United States Patent and Trademark Office, (USPTO).

    Title: Legal Processes.

    OMB Control Number: 0651-0046.

    Form Number(s): None.

    Type of Request: Renewal.

    Number of Respondents: 309 responses per year.

    Average Hours per Response: The USPTO estimates that it will take the public from 5 minutes (0.08 hours) to 6 hours to prepare a single item in this collection, including gathering the necessary information, preparing the appropriate documents, and submitting the information required for this collection.

    Burden Hours: 130 hours.

    Cost Burden: $8,479.54. The USPTO expects that the information in this collection will be prepared by attorneys and former employees at an hourly rate of $65.51. Using these hourly rates, the USPTO estimates that the total respondent cost burden for this collection will be approximately $8,479.54 per year.

    Needs and Uses: The purpose of this collection is to cover information requirements related to civil actions and claims involving current and former employees of the United States Patent and Trademark Office (USPTO). The rules for these legal processes may be found under 37 CFR part 104, which outlines procedures for service of process, demands for employee testimony and production of documents in legal proceedings, reports of unauthorized testimony, employee indemnification, and filing claims against the USPTO under the Federal Tort Claims Act (28 U.S.C. 2672) and the corresponding Department of Justice regulations (28 CFR part 14). The public may also petition the USPTO Office of General Counsel under 37 CFR 104.3 to waive or suspend these rules in extraordinary cases.

    The procedures under 37 CFR part 104 ensure that service of process intended for current and former employees of the USPTO is handled properly. The USPTO will only accept service of process for an employee acting in an official capacity. This collection is necessary so that respondents or their representatives can serve a summons or complaint on the USPTO, demand employee testimony and documents related to a legal proceeding, or file a claim under the Federal Tort Claims Act. Respondents may also petition the USPTO to waive or suspend these rules for legal processes. This collection is also necessary so that current and former USPTO employees may properly forward service and demands to the Office of General Counsel, report unauthorized testimony, and request indemnification. The USPTO covers current employees as respondents under this information collection even though their responses do not require approval under the Paperwork Reduction Act. In those instances where both current and former employees may respond to the USPTO, the agency estimates that the number of respondents will be small.

    There are no forms provided by the USPTO for this collection. For filing claims under the Federal Tort Claims Act, the public may use Standard Form 95 “Claim for Damage, Injury, or Death,” which is provided by the Department of Justice and approved by the Office of Management and Budget (OMB) under OMB Control Number 1105-0008.

    Affected Public: Individuals or households; businesses or other for-profits; not-for-profit institutions; and the Federal Government.

    Frequency: On occasion.

    Respondent's Obligation: Required to Obtain or Retain Benefits.

    OMB Desk Officer: Nicholas A. Fraser, email: [email protected]

    Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Further information can be obtained by:

    Email: [email protected] Include “0651-0046” in the subject line of the message.

    Mail: Marcie Lovett, Records Management Division Director, Office of the Chief Information Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.

    Written comments and recommendations for the proposed information collection should be sent on or before October 21, 2016 to Nicholas A. Fraser, OMB Desk Officer, via email to [email protected], or by fax to 202-395-5167, marked to the attention of Nicholas A. Fraser.

    Dated: September 15, 2016. Marcie Lovett Records Management Division Director, OCIO, United States Patent and Trademark Office.
    [FR Doc. 2016-22682 Filed 9-20-16; 8:45 am] BILLING CODE 3510-16-P
    COMMODITY FUTURES TRADING COMMISSION Renewal of the Agricultural Advisory Committee AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Commodity Futures Trading Commission (Commission) is publishing this notice to announce the renewal of the Agricultural Advisory Committee (AAC). The Commission has determined that the renewal of the AAC is necessary and in the public's interest, and the Commission has consulted with the General Services Administration's Committee Management Secretariat regarding the AAC's renewal.

    FOR FURTHER INFORMATION CONTACT:

    Cory Claussen, AAC Designated Federal Officer, at 202-418-5383 or [email protected]

    SUPPLEMENTARY INFORMATION:

    The AAC's objectives and scope of activities are to assist the Commission in assessing issues affecting agricultural producers, processors, lenders and others interested in or affected by the agricultural commodity derivatives markets through public meetings, and Committee reports and recommendations. The AAC will operate for two years from the date of renewal unless the Commission directs that the AAC terminate on an earlier date. A copy of the AAC renewal charter has been filed with the Commission; the Senate Committee on Agriculture, Nutrition and Forestry; the House Committee on Agriculture; the Library of Congress; and the General Services Administration's Committee Management Secretariat. A copy of the renewal charter will be posted on the Commission's Web site at www.cftc.gov.

    Dated: September 16, 2016. Christopher J. Kirkpatrick, Secretary of the Commission.
    [FR Doc. 2016-22717 Filed 9-20-16; 8:45 am] BILLING CODE 6351-01-P
    CONSUMER PRODUCT SAFETY COMMISSION [Docket No. CPSC-2009-0102] Submission for OMB Review; Comment Request—Follow-Up Activities for Product-Related Injuries AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Notice.

    SUMMARY:

    Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (Commission or CPSC) announces that it has submitted to the Office of Management and Budget (OMB) a request for extension of approval of a collection of information from persons who have been involved in or have witnessed incidents associated with consumer products.

    DATES:

    Written comments on this request for extension of approval of information collection requirements should be submitted by October 21, 2016.

    ADDRESSES:

    OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to [email protected]. All comments should be identified by Docket No. CPSC-2009-0102. In addition, written comments also should be submitted at http://www.regulations.gov, under Docket No. CPSC-2009-0102, or by mail/hand delivery/courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923. For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Robert H. Squibb, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: 301-504-7923 or by email to [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of June 22, 2016 (81 FR 40677), the CPSC published a notice in accordance with provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) to announce the CPSC's intention to seek extension of approval of a collection of information on product-related injuries or incidents. No comments were received in response to that notice. Therefore, by publication of this notice, the Commission announces that it has submitted to OMB a request for extension of approval of that collection of information without change.

    A. Background

    Section 5(a) of the Consumer Product Safety Act, 15 U.S.C. 2054(a), requires the Commission to collect information related to the causes and prevention of death, injury, and illness associated with consumer products. That section also requires the Commission to conduct continuing studies and investigations of deaths, injuries, diseases, other health impairments, and economic losses resulting from accidents involving consumer products.

    The Commission obtains information about product-related deaths, injuries, and illnesses from a variety of sources, including newspapers, death certificates, consumer complaints, and medical facilities. In addition, the Commission receives information through its Internet Web site through forms reporting on product-related injuries or incidents.

    The Commission also operates a surveillance system known as the National Electronic Injury Surveillance System (NEISS) that provides timely data on consumer product-related injuries treated as well as U.S. childhood poisonings. NEISS data comes from a statistically valid sample from approximately 100 hospital emergency departments. The NEISS system has been in operation since 1971. NEISS emergency department records are reviewed by hospital employees or contractors (NEISS respondents).

    From these sources, Commission staff selects cases of interest for further investigation by face-to-face or telephone interviews with persons who witnessed, or were injured in, incidents involving consumer products. The CPSC plans to begin conducting investigations through internet-based questionnaires in the next year to supplement telephone interviews. On-site investigations are usually made in cases where CPSC staff need photographs of the incident site, the product involved, or detailed information about the incident. This information can come from face-to-face interviews with persons who were injured or who witnessed the incident, as well as contact with state and local officials, including police, coroners, and fire investigators, and others with knowledge of the incident.

    The Commission uses the information to support the development and improvement of voluntary standards; rulemaking proceedings; information and education campaigns; compliance and enforcement efforts and related administrative and judicial proceedings. Commission activities are, in many cases, data driven, and incident data is crucial in advancing the agency's mission. In addition, the CPSC also collects information through NEISS for other federal agencies through Interagency Agreements including the Centers for Disease Control and Prevention (CDC) and the National Highway Traffic Safety Administration (NHTSA).

    OMB approved the collection of information concerning product-related injuries under control number 3041-0029. OMB's most recent extension of approval will expire on September 30, 2016. The Commission now proposes to request an extension of approval of this collection of information.

    B. NEISS Estimated Burden

    The NEISS system collects information on consumer-product related injuries from about 100 hospitals in the U.S. Respondents to NEISS include hospitals that directly report information to NEISS and hospitals that allow CPSC contractors to collect the data on behalf of the agency. In FY 2015, there were 137 NEISS respondents (total hospitals and CPSC contractors). The NEISS respondents reviewed an estimated 5.05 million emergency department records and reported 739,673 total cases.

    Collecting emergency department records for review each day takes about 10 minutes. Each record takes about 30 seconds to review. Coding and reporting records that involve consumer products or other injuries takes about 2 minutes per record. Coding and reporting additional special study information takes about 90 seconds per record. Respondents also spend about 36 hours per year in related activities (training, evaluations, and communicating with other hospital staff).

    The total burden hours for all NEISS respondents are estimated to be 81,210 for FY2015. The average burden hour per respondent is 593 hours. However, the total burden hour on each respondent varies due to differences in size of the hospital (e.g., small rural hospitals versus large metropolitan hospitals). The smallest hospital reported 202 cases with a burden of about 111 hours, while the largest hospital reported 60,405 cases with a burden of about 4,222 hours.

    The total costs to NEISS respondents for FY2015 are estimated to be $3,271,621 per year. NEISS respondents enter into contracts with CPSC and are compensated for these costs. The average cost per respondent is estimated to be about $23,880. The average cost per burden hour is estimated to be $40.29 per hour (including wages and overhead). However, the actual cost to each respondent varies due to the type of respondent (hospital versus CPSC contractor), size of hospital, and regional differences in wages and overhead. Therefore, the actual annual cost for any given respondent may vary between $1,199 at a small rural hospital and $281,953 at the largest metropolitan hospital.

    C. Other Burden Hours

    In cases that require more information regarding product-related incidents or injuries, the CPSC staff conducted face-to-face interviews of approximately 220 persons each year. On average, an on-site interview takes about 4.5 hours. CPSC staff also conducts about 1760 in-depth investigations by telephone. Each in-depth telephone investigation requires about 20 minutes. In addition, staff is planning to conduct about 200 internet-based questionnaires per year that require about 20 minutes each.

    The CPSC staff estimates 1,643 annual burden hours on these respondents: 989 hours for face-to-face interviews; 587 hours for in-depth telephone interviews, and 67 hours for internet-based questionnaires. The burden required for reporting is estimated at $32.82 an hour (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2016, Table 9, Total compensation for all sales and office workers in goods-producing industries: http://www.bls.gov/ncs). At this valuation, the estimated annual cost to the public is about $53,923.

    This request for the approval of an estimated 82,853 (81,210 NEISS and 1,643 other) burden hours per year is an increase of 37,845 hours since this collection of information was last approved by OMB in 2013. The increase in the burden hours is largely due to the inclusion of information collected through NEISS for other federal agencies through Interagency Agreements including CDC and NHTSA, which were not otherwise accounted for by those agencies. In order to account for all the burden hours associated with the NEISS information collection, we have added those hours to the collection of information. The increase in burden hours also includes the increase associated with offering internet-based questionnaires in addition to in-person and telephone interviews.

    This information collection request excludes the burden associated with other publicly available Consumer Product Safety Information Databases, such as internet complaints, Hotline, and Medical Examiners and Coroners Alert Project (MECAP) reports, which are approved under OMB control number 3041-0146. This information collection request also excludes the burden associated with follow-up investigations conducted by other federal agencies.

    The annual cost to the government of the collection of the NEISS information is estimated to be about $4.9 million a year. This estimate includes $3.3 million in compensation to NEISS respondents described in section 12(a) above. This estimate also includes $1.603 million for about 150 CPSC professional staff months each year. The estimate of professional staff months includes the time required to: Oversee NEISS operations (e.g., administration, training, quality control); prepare questionnaires, interviewer guidelines, and other instruments and instructions used to collect the information; conduct face-to-face and telephone interviews; and evaluate responses obtained from interviews and completed forms. Each month of professional staff time costs the Commission about $10,683.83. This is based on a GS-12 mid-level salaried employee. The average yearly wage rate for a mid-level salaried GS-12 employee in the Washington, DC metropolitan area (effective as of January 2016) is $87,821 (GS-12, step 5). This represents 68.5 percent of total compensation (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2016, Table 1, percentage of wages and salaries for all civilian management, professional, and related employees: http://www.bls.gov/ncs/). Adding an additional 31.5 percent for benefits brings average yearly compensation for a mid-level salaried GS-12 employee to $128,206.

    Dated: September 16, 2016. Todd A. Stevenson, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2016-22696 Filed 9-20-16; 8:45 am] BILLING CODE 6355-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary Charter Amendment of Department of Defense Federal Advisory Committees AGENCY:

    Department of Defense.

    ACTION:

    Amend Federal Advisory Committee Charter.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce it is amending the charter for the Air University Board of Visitors.

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    This committee's charter is being amended in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The amended charter and contact information for the Designated Federal Officer (DFO) can be obtained at http://www.facadatabase.gov/. The DoD is amending the charter for the Air University Board of Visitors (“the Board”) previously published in the Federal Register on April 14, 2016 (81 FR 22066). The Board's charter is being amended to update the estimated number of Board meetings to two per year. All other aspects of the Board's charter, as previously published, and amended as previously published in the Federal Register on July 27, 2016 (81 FR 49214), will apply to the Board.

    Dated: September 16, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-22693 Filed 9-20-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 15-55] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Chang Sug, DSCA/LMO, (703) 697-8985.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 15-55 with attached Policy Justification.

    Dated: September 16, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. EN21SE16.000 Transmittal No. 15-55 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b) (1) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: Government of Afghanistan

    (ii) Total Estimated Value:

    Major Defense Equipment* $30.0 million Other $30.0 million TOTAL $60.0 million

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:

    Major Defense Equipment (MDE): Four thousand, eight hundred and ninety-one (4,891) M16A4 5.56mm Rifles, Four hundred and eighty-five (485) M240B 7.62mm Machine Guns, Eight hundred (800) M2 .50 caliber Machine Guns.

    Non-MDE:

    Also included with this request are M249 Light Automatic Machine Guns; M110 7.62mm Sniper Rifles; MK-19 40mm Grenade Launchers; MK-93 40mm Machine Gun Mounts; M3 Tripod Machine Gun Mounts; Spare Barrels; spare and repair parts; lot validation; publications and technical documentation; personnel training and training equipment; Quality Assurance Team; U.S. Government and contractor technical and logistics support services; and other related elements of logistics and program support.

    (iv) Military Department: Army (UBY)

    (v) Prior Related Cases, if any:

    FMS case B6-B-FAK—$138.8M—Nov 2007; FMS case E3-B-UAF—$39.0M—Aug 2008; FMS case E6-B-UBN—$55.0M—Jul 2009; FMS case AF-B-UBI—$3.3M—Jan 2010; FMS case G5-B-UAG—$39.0M—Mar 2010; FMS case G5-B-UEQ—$11.0M—Nov 2010; FMS case G5-B-UEK—$152.5M—Nov 2010; FMS case G6-B-UBD—$20.2M—Apr 2011; FMS case G6-B-UBI—$512.6M—May 2011; FMS case H5-B-UCN—$20.8M—Dec 2012; FMS case H5-B-UES—$1.8M—Aug 2013; FMS case J3-B-UCJ—$50.9M—Mar 2015; FMS case J3-B-UDE—$2.7M—Apr 2015; FMS case J3-B-UEW—$5.66M—Sep 2015; FMS case J8-B-UAI—$21M—May 2015; FMS case J8-B-UAN—$7.6M—Jul 2015; FMS case V3-B-UAP—$9M—Apr 2016

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None.

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: None.

    (viii) Date Report Delivered to Congress: 2016 AUG 17.

    * as defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Afghanistan—Individual and Crew Served Weapons

    The Government of Afghanistan has requested a possible sale of:

    Major Defense Equipment (MDE): Four thousand, eight hundred and ninety-one (4,891) M16A4 5.56mm Rifles, Four hundred and eighty-five (485) M240B 7.62mm Machine Guns, Eight hundred (800) M2 .50 caliber Machine Guns.

    Non-MDE:

    Also included with this request are M249 Light Automatic Machine Guns; M110 7.62mm Sniper Rifles; MK-19 40mm Grenade Launchers; MK-93 40mm Machine Gun Mounts; M3 Tripod Machine Gun Mounts; Spare Barrels; spare and repair parts; lot validation; publications and technical documentation; personnel training and training equipment; Quality Assurance Team; U.S. Government and contractor technical and logistics support services; and other related elements of logistics and program support. The estimated cost is $60 million.

    The proposed sale will enhance the foreign policy and national security objectives of the United States by helping to improve the security of a strategic partner by providing weapons needed to maintain security and stability, as well as to conduct offensive operations against an ongoing insurgency. A stable and secure Afghanistan is vital to regional stability. This proposed sale will also demonstrate the U.S. commitment to Afghanistan's security.

    Afghanistan has an urgent requirement to increase its stocks of crew-served weapons for ongoing counter-insurgency operations and enduring threats to its national sovereignty. These articles were determined to be necessary and are based on Afghanistan's force structure and operational requirements.

    The Afghan National Army (ANA) will use these weapons and equipment in both offensive and defensive operations against insurgents and terrorists within their borders. Without these defense articles, the ANA will not have the military capabilities that are necessary to maintain security and stability. The ANA is thoroughly trained and prepared to use the proposed defense articles. Afghanistan will have no difficulty absorbing this equipment into its armed forces.

    While equipment for the ANA is typically purchased with Title 10 Afghanistan Security Forces Fund (ASFF) appropriations and implemented by DSCA through pseudo-FMS cases, Afghanistan will use U.S. government grants to fund and support this proposed purchase.

    The principal contractor for the M240B will be FN America, Colombia, SC. The principal contractors for the M16A4, M2, and other weapons have not been identified pending open competition and contract award. Some items may be drawn from Army stocks to meet desired delivery dates. There are no known offset agreements proposed in connection with this potential sale.

    Implementation of this sale will require the assignment of approximately eight (8) additional U.S. Government and approximately six (6) contractor representatives to Afghanistan for approximately 5-6 weeks in support of the fielding, maintenance and personnel training.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    [FR Doc. 2016-22692 Filed 9-20-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-29] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Chang Sug, DSCA/STR/LMO, (703) 697-8985.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-29 with attached Policy Justification and Sensitivity of Technology.

    Dated: September 15, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. EN21SE16.001 Transmittal No. 16-29 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: Government of Qatar

    (ii) Total Estimated Value:

    Major Defense Equipment * $0.02 million Other $124.00 million TOTAL $124.02 million

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:

    Major Defense Equipment (MDE): Eight (8) M2HB .50 Caliber Machine Guns.

    Non-MDE:

    Also included are Mk-V Fast Patrol Boats, Forward Looking Infrared (FLIR) Systems, MLG 27mm Gun Systems, 27mm ammunition, 27mm target practice ammunition, .50 Caliber ammunition, support equipment, publications, technical documentation, personnel training, U.S. Government and contractor engineering, in-country support, technical and logistics support services.

    (iv) Military Department: Navy

    (v) Prior Related Cases, if any: None

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Attached annex.

    (viii) Date Report Delivered to Congress: 19 AUG 2016.

    * as defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Qatar—Mk-V Fast Patrol Boat

    The Government of Qatar has requested:

    Major Defense Equipment (MDE): Eight (8) M2HB .50 Caliber Machine Guns.

    Non-MDE:

    Also included are Mk-V Fast Patrol Boats, Forward Looking Infrared (FLIR) Systems, MLG 27mm Gun Systems, 27mm ammunition, 27mm target practice ammunition, .50 Caliber ammunition, support equipment, publications, technical documentation, personnel training, U.S. Government and contractor engineering, in-country support, technical and logistics support services.

    The total estimated value of MDE is $0.02 million. The total estimated value is $124.02 million.

    This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country. Qatar is an important force for political stability and economic progress in the Persian Gulf region. This proposed sale will provide Qatar with military capabilities to protect its critical sea-based infrastructure and maritime security. Qatar will have no difficulty absorbing this equipment into its armed forces.

    The proposed sale of this equipment, services, and support will not alter the basic military balance in the region.

    The principal contractor will be United States Marine Incorporated (USMI) in Gulfport, Mississippi. There are no known offset agreements proposed in connection with this potential sale.

    Implementation of this proposed sale will require multiple trips by U.S. Government and contractor representatives to participate in program and technical reviews, system integration, as well as training and maintenance support in country for a period of five (5) years.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    Transmittal No. 16-29 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as amended Annex Item No. vii

    (vii) Sensitivity of Technology:

    1. The Mk-V fast patrol boat is approximately twenty-eight meters (28) long with an approximate beam of six (6) meters powered by MTU diesel engines with a waterjet drive. It has a top speed of forty-five (45) knots. The MK-V is outfitted with a stern launch-able inflatable boat. The MK-V is outfitted with unclassified commercial off-the-shelf navigation to include magnetic compass, fluxgate compass, gyro compass, Global Positioning System (GPS), electronic chart plotter, anemometer, navigation radar, navigation lights, navigation horn siren, and other electrical and non-electronic navigation aids. The MK-V utilizes commercial communications to include high frequency (HF), and very high frequency (VHF) communication radio systems, intercom system, boat horn and blue strobe Jaw enforcement lights. The overall classification level of the vessel is UNCLASSIFIED.

    2. A determination has been made that the Government of Qatar can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of U.S. foreign policy and national security objectives outlined in the Policy Justification.

    3. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Qatar.

    [FR Doc. 2016-22655 Filed 9-20-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2013-OS-0072] Proposed Collection; Comment Request AGENCY:

    United States Military Entrance Processing Command (USMEPCOM), Office of the Under Secretary of Defense (Personnel and Readiness) (Military Personnel Policy), DoD.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the United States Military Entrance Processing Command (USMEPCOM), Office of the Under Secretary of Defense (Personnel and Readiness) (Military Personnel Policy) announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by November 21, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title 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.

    Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the HQ USMEPCOM Program Analysis and Evaluation Directorate, ATTN: Mr. Donald Wnuk, 2834 Green Bay Road, North Chicago, IL 60064-3094; call at 847-688-3680, Extension 7235, or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: USMEPCOM MEPS Customer Satisfaction Survey, OMB Control Number 0704-0470.

    Needs and Uses: The information collection requirement is necessary to aid the MEPS in evaluating effectiveness of current policies and core processes, identifying unmet customer needs, and allocating resources more efficiently.

    Affected Public: Individuals or households.

    Annual Burden Hours: 12,500.

    Number of Respondents: 75,000.

    Responses per Respondent: 1.

    Annual Responses: 1.

    Average Burden per Response: 10 minutes.

    Frequency: On occasion.

    USMEPCOM, with headquarters in North Chicago, Ill., is a joint service command staffed with civilians and military from all five branches of service. The command, through its network of 65 Military Entrance Processing Stations, determines whether applicants are qualified for enlistment based on standards set by each of the services. USMEPCOM Regulation 601-23, Enlistment Processing, directs the information collection requirement for all 65 Military Entrance Processing Stations (MEPS) to obtain timely feedback on MEPS core processes. This web-based tool will allow MEPS to efficiently administer voluntary surveys on a routine basis to their primary customer, the applicants, for military service. This information collection requirement is necessary to aid the MEPS in evaluating effectiveness of current policies and core processes, identifying unmet customer needs, and allocating resources more efficiently.

    Dated: September 16, 2016. Aaron Siegel, Alternate OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2016-22695 Filed 9-20-16; 8:45 am] BILLING CODE 5001-06-P
    DENALI COMMISSION Fiscal Year 2017 Draft Work Plan AGENCY:

    Denali Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Denali Commission (Commission) is an independent federal agency based on an innovative federal-state partnership designed to provide critical utilities, infrastructure and support for economic development and training in Alaska by delivering federal services in the most cost-effective manner possible. The Commission was created in 1998 with passage of the October 21, 1998 Denali Commission Act (Act) (Title III of Pub. L. 105-277, 42 U.S.C. 3121). The Act requires that the Commission develop proposed work plans for future spending and that the annual Work Plan be published in the Federal Register, providing an opportunity for a 30-day period of public review and written comment. This Federal Register notice serves to announce the 30-day opportunity for public comment on the Denali Commission Draft Work Plan for Federal Fiscal Year 2017 (FY 2017).

    DATES:

    Comments and related material to be received by October 21, 2016.

    ADDRESSES:

    Submit comments to the Denali Commission, Attention: Sabrina Cabana, 510 L Street, Suite 410, Anchorage, AK 99501.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Sabrina Cabana, Denali Commission, 510 L Street, Suite 410, Anchorage, AK 99501. Telephone: (907) 271-1414. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Denali Commission's mission is to partner with tribal, federal, state, and local governments and collaborate with all Alaskans to improve the effectiveness and efficiency of government services, to build and ensure the operation and maintenance of Alaska's basic infrastructure, and to develop a well-trained labor force employed in a diversified and sustainable economy.

    By creating the Commission, Congress mandated that all parties involved partner together to find new and innovative solutions to the unique infrastructure and economic development challenges in America's most remote communities. Consistent with its statutory mission, in September of 2015 President Obama designated the Commission as the lead federal agency for coordinating federal efforts to mitigate the impacts of erosion, flooding and permafrost degradation in rural Alaska. The primary goal is to build climate resilience with respect to infrastructure in environmentally threatened communities.

    Pursuant to the Act, the Commission determines its own basic operating principles and funding criteria on an annual federal fiscal year (October 1 to September 30) basis. The Commission outlines these priorities and funding recommendations in an annual Work Plan. The FY 2017 Work Plan was developed in the following manner.

    • A workgroup comprised of Denali Commissioners and Commission staff developed a preliminary draft Work Plan.

    • The preliminary draft Work Plan was published on www.denali.gov for review by the public in advance of public testimony.

    • A public hearing was held to record public comments and recommendations on the preliminary draft Work Plan.

    • Written comments on the preliminary draft Work Plan were accepted for another two weeks after the public hearing.

    • All public hearing comments and written comments were provided to Commissioners for their review and consideration.

    • Commissioners discussed the preliminary draft Work Plan in a public meeting and then voted on the Work Plan during the meeting.

    • The Commissioners forwarded their recommended Work Plan to the Federal Co-Chair, who then prepared the draft Work Plan for publication in the Federal Register providing a 30-day period for public review and written comment. During this time, the draft Work Plan will also be disseminated to Commission program partners including, but not limited to, the Bureau of Indian Affairs (BIA), the Economic Development Administration (EDA), Department of Agriculture—Rural Utilities Service (USDA/RUS), and the State of Alaska.

    • At the conclusion of the Federal Register Public comment period Commission staff provides the Federal Co-Chair with a summary of public comments and recommendations, if any, on the draft Work Plan.

    • If no revisions are made to the draft, the Federal Co-Chair provides notice of approval of the Work Plan to the Commissioners, and forwards the Work Plan to the Secretary of Commerce for approval; or, if there are revisions the Federal Co-Chair provides notice of modifications to the Commissioners for their consideration and approval, and upon receipt of approval from Commissioners, forwards the Work Plan to the Secretary of Commerce for approval.

    • The Secretary of Commerce approves the Work Plan.

    • The Federal Co-Chair then approves grants and contracts based upon the approved Work Plan.

    FY 2017 Appropriations Summary

    The Commission has historically received federal funding from several sources. These fund sources are governed by the following general principles:

    • In FY 2017 no project specific direction was provided by Congress.

    • The Energy and Water Appropriation (i.e. “discretionary” or “base” funding) is eligible for use in all programs.

    • Certain appropriations are restricted in their usage. Where restrictions apply, the funds may be used only for specific program purposes.

    • Final appropriation funds received may be reduced due to Congressional action, rescissions by the Office of Management and Budget (OMB), and other federal agency action.

    • All Energy and Water Appropriation and Trans-Alaska Pipeline Liability (TAPL) funds, including operating funds, identified in the Work Plan, are “up to” amounts, and may be reassigned to other programs included in the current year work plan, if they are not fully expended in a program component area or a specific project.

    • The proposed FY 2017 Work Plan is based upon the funds allocated to the Commission in Senate appropriation bill S.2804 of $15,000,000. Approximately $3,000,000 of the $15,000,000 was allocated to administrative expenses and non-project program support leaving $12,000,000 available for program activities. The Commission anticipates TAPL funds of $3,600,000 will be allocated to the Commission with $200,000 of that amount being utilized for administrative expenses and non-project program support leaving $3,400,000 available for program activities.

    Denali Commission FY 2017 Funding Summary Source Available for
  • program
  • activities
  • Energy & Water Funds FY 2017 Appropriation a $12,000,000 Subtotal 12,000,000 TAPL Funds FY 2017 Annual Allocation b 3,400,000 Subtotal 3,400,000 Grand Total 15,400,000 Notes: a. Estimated FY 2017 program funds based on S.2804 Appropriations Bill; if the final Base appropriation is less than the amount in S.2804, the Federal Co-Chair shall reduce investments in the Energy Program to balance the FY 2017 Work Plan. b. Estimated FY 2017 program funds based on discussions with OMB.
    Denali Commission FY 2017 Work Plan Program and type of investment Energy and water funds TAPL funds Total Energy Diesel Power Plants $5,800,000 $5,800,000 Interties Wind/Microgrids Hydro, Biomass, Geothermal & Other Renewables Hydrokinetics & Others Emerging Technologies Audits, Technical Assistance, & Community Energy Improvements 500,000 500,000 RPSU Maintenance & Improvements 500,000 500,000 Subtotal 6,800,000 $0 6,800,000 Bulk Fuel New/Refurbished Facilities and Maintenance & Improvement Projects 3,200,000 3,200,000 Improve Administrative and Operation & Maintenance Projects 200,000 200,000 200,000 Subtotal 200,000 3,400,000 3,600,000 Environmentally Threatened Communities Mertarvik 1,500,000 1,500,000 Shaktoolik 500,000 500,000 Shishmaref 500,000 500,000 Kivalina 500,000 500,000 27 Other Communities in 2009 GAO Report 1,000,000 1,000,000 Program Development 1,000,000 1,000,000 Subtotal 5,000,000 0 5,000,000 Grand Total 12,000,000 3,400,000 15,400,000 Energy and Bulk Fuel Programs

    FY 2017 Denali Commission investments in Energy and Bulk Fuel will include:

    • Remote Power System Upgrade (RPSU) projects at locations selected based on need in consultation with the Alaska Energy Authority (AEA) and Alaska Village Electric Cooperative (AVEC).

    • Bulk Fuel Upgrade (BFU) projects at locations selected based on need in consultation with AEA and AVEC.

    • Rural power system and bulk fuel facility Maintenance and Improvement (M&I) projects at locations selected based on need in consultation with AEA and AVEC.

    • Continued support of the rural power system and bulk fuel facility operator training programs managed by AEA.

    • Continued support of initiatives at the State of Alaska Department of Community and Regional Affairs (DCRA) and the Alaska Community Foundation (ACF) to improve the administrative capacity related to operating bulk fuel facilities in rural Alaska.

    • Continued support of the Sanitation Energy Efficiency Program at the Alaska Native Tribal Health Consortium (ANTHC).

    Environmentally Threatened Communities Program

    In order to fulfill its role as lead federal coordinating agency the Commission staff, in consultation with State, Federal, and other partners, and the referenced communities in particular, proposes the following investments in support of the new Environmentally Threatened Communities (ETC) Program. United States Government Accountability Office (GAO) Report 09-551 (http://www.gao.gov/products/GAO-09-551) was instrumental in charting prospective Commission investments.

    Mertarvik

    The community of Newtok has initiated its relocation to Mertarvik and has started building infrastructure at Mertarvik. The Commission funds summarized above will be used for the following activities:

    • Continued support for the existing Community Relocation Coordinator.

    • Continued support for professional project management services.

    • Match/gap funds for on-going relocation activities.

    Shaktoolik

    The community of Shaktoolik has decided to protect the community in place for now. The Commission funds summarized above will be used for the following activities:

    • Continued support for the existing Community Relocation Coordinator.

    • Design of protect in place projects.

    • Design and procure household and community emergency kits.

    • Match/gap funds for other related activities.

    Shishmaref

    Shishmaref is considering relocation but has not yet selected a new site. The Commission funds summarized above will be used for the following activities:

    • Continued support for the existing Community Relocation Coordinator • Design of protect in place projects • Design and procure household and community emergency kits • Match/gap funds for other related activities Kivalina

    Kivalina is considering relocation and has selected a site for a new school. The Commission funds summarized above will be used for the following activities:

    • Continued support for the existing Community Relocation Coordinator • Design of protect in place projects • Design and procure household and community emergency kits • Match/gap funds for other related activities Other Communities in the 2009 GAO Report

    The Commission funds summarized above will be used for the following activities in support of the 27 other communities in GAO Report 09-551:

    • Design of site specific projects based on existing Federal Emergency Management Administration approved Hazard Mitigation Plans and Small Community Emergency Response Plans Program Development

    The Commission intends to make $1,000,000 available for general ETC program development initiatives such as the following.

    • Continued support of a fund that compliments other state and federal agencies responding to ETC related disasters • Continued support of an ETC Grant Writing Center of Excellence being established at the Alaska Native Tribal Health Consortium • Design of a prototype community shelter that can be site adapted to Shaktoolik, Shishmaref and Kivalina • Analysis of existing erosion, permafrost degradation and flood data to quantify threats to infrastructure related to climate change • ETC related outreach travel and partner support Joel Neimeyer, Federal Co-Chair.
    [FR Doc. 2016-22704 Filed 9-20-16; 8:45 am] BILLING CODE 3300-01-P
    DEPARTMENT OF EDUCATION Authorization of Subgrants for the Disability Innovation Fund—Automated Personalization Computing Project AGENCY:

    Office of Special Education and Rehabilitative Services, Department of Education.

    ACTION:

    Notice.

    [Catalog of Federal Domestic Assistance Number: 84.421A] SUMMARY:

    This notice authorizes the use of subgrants with Disability Innovation Fund—Automated Personalization Computing (APC) Project funds awarded to the Board of Regents of the University of Wisconsin System under CFDA number 84.421A, as provided by the Consolidated Appropriations Act, 2014, for the purpose of carrying out its proposed activities to implement a demonstration of automated personalization computing for individuals with disabilities.

    DATES:

    September 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Zhu, U.S. Department of Education, Rehabilitation Services Administration, 550 12th Street SW., Room 5048, Potomac Center Plaza, 20202-5076. Telephone: (202) 245-6037 or by email: [email protected]

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

    SUPPLEMENTARY INFORMATION:

    Purpose of Program: The purpose of the Disability Innovation Fund is to support innovative activities aimed at improving the outcomes of “individuals with disabilities,” as defined in section 7(20)(B) of the Rehabilitation Act of 1973, as amended.

    Under this authority, the Department has entered into a cooperative agreement with the grantee to implement the Disability Innovation Fund—Automated Personalization Computing Project (APCP). This project is designed to improve outcomes for individuals with disabilities by increasing access to information and communication technologies through automatic personalization of needed assistive technology.

    Program Authority: The Consolidated Appropriations Act, 2014 (Pub. L. 113-76).

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, and 99. (b) The OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The priorities and requirements in the notice inviting applications for this program, published July 23, 2015, in the Federal Register (80 FR 43763).

    Eligible Entities for Subgrants: A State or public or non-profit agency or organization, including Indian tribes and institutions of higher education.

    Discussion: Recognizing that the APC project will need to involve coordination among several different sectors, including cloud or other technology platform providers, assistive technology researchers and manufacturers, and disability advocacy organizations, the Department has required that the grantee set up a partnership involving highly experienced public and private entities. The subgranting authority will allow the grantee to tap unique talent sources with the technical expertise to carry out the activities of the project. Examples of proposed activities to be carried out by these subgrantees could include but are not limited to: Development of accessibility infrastructure for auto-personalization; pilot test coordination (America's Job Centers, employers, and educational institutions); and metrics development, collection, and analysis. Pursuant to 34 CFR 75.708(b)(2), the grantee may make subgrants to eligible entities that have already been identified in its approved application or to other eligible entities that are selected through a competitive process set out in subgranting procedures established by the grantee.

    Requirements: If the grantee uses this subgranting authority, the subgrants must be used to directly carry out project activities described in the grantee's application. The grantee must ensure that the subgrants are awarded on the basis of an approved budget that is consistent with the grantee's approved application and all applicable Federal statutory, regulatory, and other requirements. The grantee must also ensure that every subgrant includes any conditions required by Federal statutes and Executive orders and their implementing regulations. Finally, the grantee must ensure that subgrantees are aware of requirements imposed by Federal statutes and regulations, including the Federal anti-discrimination laws enforced by the Department, which are set out at 34 CFR 75.500.

    Note:

    This notice does not solicit applications. The Disability Innovation Fund—Automatic Personalization Computing Project (CFDA number 84.421A) has been awarded to the Board of Regents of the University of Wisconsin System.

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

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

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

    Dated: September 16, 2016. Sue Swenson, Acting Assistant Secretary for Special Education and Rehabilitative Services.
    [FR Doc. 2016-22774 Filed 9-20-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Membership of the Performance Review Board AGENCY:

    Office of Management, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Secretary publishes a list of persons who may be named to serve on the Performance Review Board that oversees the evaluation of performance appraisals for Senior Executive Service members of the Department.

    DATES:

    Effective Date: September 21, 2016.

    SUPPLEMENTARY INFORMATION:

    Membership

    Title 5, U.S.C. Section 4314(c)(4) of the Civil Service Reform Act of 1978, Public Law 95-454, requires that the appointment of Performance Review Board members be published in the Federal Register. The following persons may be named to serve on the Performance Review Board:

    ANDERSON, MARGO K. ANTHONY, PERRY E. APPEL, CHARLES J. ASHLEY, CAROL BAKER, JEFFREY S. BATTLE, SANDRA G. BERGSTROM, PETER BETKA, SUE E. BUCK, RUTHANNE L. BYRD-JOHNSON, LINDA CANELLOS, ERNEST C. CARR, PEGGY G. CARTER, DENISE L. CHANG, LISA CHAPMAN, CHRISTOPHER CHAVEZ, ANTHONY CHISM, MONIQUE M. COLE, KEIA CONATY, JOSEPH C. CORDES, WILLIAM CUFFEE-GRAVES, CASSANDRA L. DABBY, NADYA C. DIPAOLO, JOHN K. ELIADIS, PAMELA D. ELLIS, KATHRYN A. FEELY, HARRY M. FORD, KIM GALANTER, SETH M. GIL, LIBIA S. GINNS, LAURA GRAY, JASON GREEN, BIANCA HAIRFIELD, JAMES M. HALL, LINDA W. HUNTER REED, KIM HURT, JOHN W. III JENKINS, HAROLD B. KEAN, LARRY G. KIM, ROBERT KOEPPEL, DENNIS P. LEHRICH, MATTHEW LUCAS, RICHARD J. LUCZAK, RONALD J. MAESTRI, PHILIP A. MAHAFFIE, LYNN B. MALAWER, HILARY MCFADDEN, ELIZABETH A. MCINTOSH, AMY B. MCLAUGHLIN, MAUREEN A. MILLER, DANIEL MOORE, KENNETH NAVARRO, ERICA PENDLETON, AUDREY J. PEPIN, ANDREW, J. RIDDLE, PAUL N. ROBISON, GREGORY ROSENFELT, PHILIP H. RYDER, RUTH E. SANTY, ROSS JR. SASSER, TRACEY L. SHILLING, RUSSELL D. SIMPSON, DANIEL SKELLY, THOMAS P. SOLTIS, TIMOTHY F. SOUTH, JOSEPH STANTON, CRAIG STRACKE, LINDA A. STYLES, KATHLEEN M. SWENSON, SUE ELLEN THOMAS, MILTON L. JR. UVIN, JOHAN E. VADEHRA, EMMA WASHINGTON, MARK WHALEN, ANTONIA WILBANKS, LINDA R. WILLS, RANDOLPH E. WOOD, GARY H. WOOD, HAMILTON E. JR. FOR FURTHER INFORMATION CONTACT:

    Valarie Barclay, Director, Executive Resources Division, Office of Human Resources, Office of Management, U.S. Department of Education, 400 Maryland Avenue SW., Room 2C150, LBJ, Washington, DC 20202-4573. Telephone: (202) 453-5918.

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

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

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

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

    Dated: September 16, 2016. John King, Secretary of Education.
    [FR Doc. 2016-22766 Filed 9-20-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY [Certification Notice—243] Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use Act AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of filing.

    SUMMARY:

    On September 7, 2016, Indeck Niles, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE), pursuant to the Powerplant and Industrial Fuel Use Act of 1978 (FUA).

    ADDRESSES:

    Copies of coal capability self-certification filings are available for public inspection, upon request, in the Office of Electricity Delivery and Energy Reliability, Mail Code OE-20, Room 8G-024, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Lawrence at (202) 586-5260.

    SUPPLEMENTARY INFORMATION:

    The filing is pursuant to § 201(d) of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations in 10 CFR 501.60, 61. The FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the Federal Register. 42 U.S.C. 8311(d) and 10 CFR 501.61(c). Title II of FUA, as amended (42 U.S.C. 8301 et seq.), provides that no new base load electric powerplant may be constructed or operated without the capability to use coal or another alternate fuel as a primary energy source. Pursuant to the FUA, in order to meet the requirement of coal capability, the owner or operator of such a facility proposing to use natural gas or petroleum as its primary energy source shall certify to the Secretary of Energy (Secretary) prior to construction, or prior to operation as a base load electric powerplant, that such powerplant has the capability to use coal or another alternate fuel. Such certification establishes compliance with FUA section 201(a) as of the date it is filed with the Secretary. 42 U.S.C. 8311.

    The following owner of a proposed new baseload electric generating powerplant has filed a self-certification of coal-capability with DOE pursuant to FUA section 201(d) and in accordance with DOE regulations in 10 CFR 501.60, 61:

    Owner: Indeck Niles, LLC Capacity: 1000 megawatts (MW) Plant Location: Niles City Industrial Park, Niles, MI. In-Service Date: May 2020 Issued in Washington, DC, on September 14, 2016. Christopher Lawrence, Electricity Policy Analyst, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2016-22627 Filed 9-20-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas, and To Vacate Prior Authorization, During August 2016 FE Docket Nos. CLEAN ENERGY 16-92-LNG RIO GRANDE LNG, LLC 15-190-LNG TRAILSTONE NA LOGISTICS, LLC 16-96-NG COKINOS ENERGY CORPORATION 16-97-NG CENTRAL VALLE HERMOSO, S.A. DE C.V 16-95-NG ST. CLAIR POWER L.P 16-94-NG PETROCHINA INTERNATIONAL (AMERICA), INC 16-93-NG BIOURJA TRADING, LLC 16-91-NG TWIN EAGLE RESOURCE MANAGEMENT, LLC 16-100-NG AMERICAN LNG MARKETING LLC 16-33-LNG ENBRIDGE GAS NEW BRUNSWICK LIMITED PARTNERCHIP 16-99-NG EXELON GENERATION COMPANY, LLC 16-104-NG EXGEN ENERGY, S.R.L 16-105-NG BOISE WHITE PAPER, L.L.C 16-106-NG BIOURJA POWER, LLC 16-90-NG MERRILL LYNCH COMMODITIES, INC 16-101-NG MERRICL LYNCH COMMODITIES CANADA, ULC 16-102-NG
  • 14-198-NG
  • AGENCY:

    Office of Fossil Energy, Department of Energy.

    ACTION:

    Notice of orders.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy gives notice that during August 2016, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), and to vacate prior authority. These orders are summarized in the attached appendix and may be found on the FE Web site at http://energy.gov/fe/listing-doefe-authorizationsorders-issued-2016.

    They are also available for inspection and copying in the U.S. Department of Energy (FE-34), Division of Natural Gas Regulation, Office of Regulation and International Engagement, Office of Fossil Energy, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.

    Issued in Washington, DC, on September 14, 2016. John A. Anderson, Director, Office of Regulation and International Engagement, Office of Oil and Natural Gas. APPENDIX DOE/FE Orders Granting Import/Export Authorizations 3865 08/22/16 16-02-LNG Clean Energy Order 3865 granting blanket authority to import/export LNG from/to Free Trade Agreement Nations by truck, rail, barge, or other waterborne vessel. 3869 08/17/16 15-190-LNG Rio Grande LNG, LLC Order 3869 granting long-term Multi-contract authority to export LNG by vessel from the Proposed Rio Grande LNG Terminal in Brownsville, Texas, to Free Trade Agreement Nations. 3870 08/09/16 16-96-NG Trailstone NA Logistics, LLC Order 3870 granting blanket authority to import/export natural gas from/to Canada/Mexico. 3871 08/09/16 16-97-NG Cokinos Energy Corporation Order 3871 granting blanket authority to export natural gas to Mexico. 3872 08/09/16 16-95-NG Central Valle Hermoso, S.A. de C.V Order 3872 granting blanket authority to import/export natural gas from/to Mexico. 3873 08/09/16 16-94-NG St. Clair Power L.P Order 3873 granting blanket authority to import/export natural gas from/to Canada. 3874 08/09/16 16-93-NG Petrochina International (America), Inc Order 3874 granting blanket authority to import/export natural gas from/to Canada/Mexico. 3875 08/19/16 16-91-NG BioUrja Trading, LLC Order 3875 granting blanket authority to import/export natural gas from/to Canada/Mexico. 3876 08/19/16 16-100-NG Twin Eagle Resource Management, LLC Order 3876 granting blanket authority to import/export natural gas from/to Canada and to export natural gas to Mexico. 3877 08/24/16 16-33-LNG American LNG Marketing LLC Order 3877 granting blanket authority to export LNG in ISO Containers loaded at the Hialeah facility near Medley, Florida, and exported by vessel. 3878 08/25/16 16-99-NG Enbridge Gas New Brunswick Limited Partnership Order 3878 granting blanket authority to import/export natural gas from/to Canada. 3879 08/25/16 16-104-NG Exelon Generation Company, LLC Order 3879 granting blanket authority to import/export natural gas from/to Mexico. 3880 08/25/16 16-105-NG ExGen Energy, S.R.L Order 3880 granting blanket authority to import/export natural gas from/to Canada. 3881 08/25/16 16-106-NG Boise White Paper, L.L.C Order 3881 granting blanket authority to import natural gas from Canada. 3882 08/30/16 16-90-NG BioUrja Power, LLC Order 3882 granting blanket authority to import/export natural gas from/to Canada/Mexico. 3883 08/30/16 16-101-NG Merrill Lynch Commodities, Inc Order 3883 granting blanket authority to import/export natural gas from/to Canada/Mexico. 3884 08/30/16 16-102-NG/14-198-NG Merrill Lynch Commodities Canada, ULC Order 3884 granting blanket authority to export natural gas to Canada and vacating prior authorization.
    [FR Doc. 2016-22750 Filed 9-20-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER16-2578-000] North Lancaster Ranch 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 North Lancaster Ranch 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 October 3, 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 13, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-22644 Filed 9-20-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC16-181-000.

    Applicants: Jericho Rise Wind Farm LLC.

    Description: Application for Authorization for Disposition of Jurisdictional Facilities and Request for Expedited Action of Jericho Rise Wind Farm LLC.

    Filed Date: 9/13/16.

    Accession Number: 20160913-5448.

    Comments Due: 5 p.m. ET 10/4/16.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2980-007; ER10-2983-007.

    Applicants: Castleton Power, LLC, Castleton Energy Services, LLC.

    Description: Supplement to August 19, 2016 Notice of Non-Material Change in Status of Castleton Power, LLC, et al.

    Filed Date: 9/13/16.

    Accession Number: 20160913-5444.

    Comments Due: 5 p.m. ET 10/4/16.

    Docket Numbers: ER13-102-011.

    Applicants: New York Independent System Operator, Inc.

    Description: Compliance filing: Compliance with 12/23/15 Order 1000 directives to be effective 4/1/2016.

    Filed Date: 9/13/16.

    Accession Number: 20160913-5407.

    Comments Due: 5 p.m. ET 10/4/16.

    Docket Numbers: ER16-1758-001.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2016-09-14_Compliance re Filing to revise SSR tariff provisions to be effective 8/22/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5026.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2584-000.

    Applicants: RE Astoria LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing for Astoria to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5036.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2585-000.

    Applicants: RE Astoria 2 LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing Astoria 2 to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5037.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2586-000.

    Applicants: RE Mustang LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing Mustang to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5042.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2587-000.

    Applicants: RE Mustang 3 LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing Mustang 3 to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5043.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2588-000.

    Applicants: RE Mustang 4 LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing Mustang 4 to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5044.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2589-000.

    Applicants: RE Barren Ridge 1 LLC.

    Description: Section 205(d) Rate Filing: Revised Market-Based Rate Tariff Filing Barren Ridge to be effective 9/15/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5045.

    Comments Due: 5 p.m. ET 10/5/16.

    Docket Numbers: ER16-2590-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Section 205(d) Rate Filing: 2016-09-14_Revisions to Coordination Agreement between MISO and IESO to be effective 7/22/2016.

    Filed Date: 9/14/16.

    Accession Number: 20160914-5063.

    Comments Due: 5 p.m. ET 10/5/16.

    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-